SECTION C - TV INC VOD & RADIO

The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing these channels' rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important (due to profile and spend) is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries  

Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence

Rules for this channel

• 'Untargeted' advertising is prohibited for online games of chance. Article 9.1 states: No advertising via a broadcast service and:

• (We include some online - e.g. video sharing platforms - in this channel's scope, due to the extension of the AVMS). Article 9.1 does not apply to advertising via the internet or via an on-demand media service, if the online gambling provider: a. Has given people the opportunity to state that they do not wish to be exposed to the advertising; b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people; c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults. (Art. 9.2)

​

Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players

Rules for this channel

• 6.5. Games of Chance Advertising shall not be directed at Minors. This is usually complied with by not depicting persons who are or seem to be younger than 18 years, without need, in Games of Chance Advertising. If it is allowed to sell lottery tickets and they are actually sold by Minors (such as at Scouting Netherlands, Jantje Beton and the Grote Clubactie) it is allowed to depict such Minors save this does not promote participation by Minors in the Game of Chance.
• 6. 6. No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.)
• 6.7. Games of Chance Providers are not allowed to sponsor activities of third parties or radio and/or television shows with the exception  of a neutral reference to sponsorship of media offering, mainly or explicitly directed at Minors, save the sponsorship is exclusively meant to motivate Minors to commit themselves in the interest of their organisation, school, club or association to the canvassing of adult participants in Games of Chance.

• 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years.

• 6.11. Linear television services shall not include any Games of Chance Advertising between 6:00 a.m. and 7:00 p.m. In order to avoid any misunderstanding: neither in the form of teleshopping messages. However, contrary to this a neutral reference to the sponsorship of media offering is allowed during such time.

​

SECTION C: TV & RADIO/ AV

KEY RULES AND SOURCES 

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

COMMERCIAL CHANNELS
Incorporates TV and Radio and On-demand

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

CVDM Policy on advertising, commercial media organisations 2012 (EN)

CVDM Policies sponsoring commercial media organisations 2012 (EN)

CVDM regulation on product placement by commercial media institutions 2014 (EN)​

The 2022 policy rules for advertising, sponsorship, product placement and on-demand are linked in the landing page below; these are currently only available in Dutch, but there's helpful commentary in English from CMS Netherlands/ Lex here and they anyway reflect the amends to the Media Act separately conveyed

https://www.cvdm.nl/uploader/meer-weten

SECTION C TV/AV AND RADIO

EASA Jan 2024 update on the AVMSD

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), 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 unless the sponsor is legally allowed to be the programme producer or co-producer, media owner or financier funder;
• 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 and in social media, including any influencer involvement 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.

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SECTION C - CINEMA, PRINT, OUTDOOR

The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing these channels' rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important (due to profile and spend) is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries  

Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence

Rules for these channels

• 'Untargeted' advertising is prohibited for online games of chance. Article 9.1 states: No advertising via...2. 'newspapers, magazines or other printed, publicly available means of communication and:
• 3. That can be seen in a public place per Section 1 of the Public Manifestations Act, in a building accessible to the public as referred to in Section 174 Paragraph 1 of the Municipalities Act or on an associated property.'

• Cinema is not specifically identified, but we take it to be perceived by the authorities as an 'untargeted' medium and carrying risks of reaching minors/ young people

​

Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players

Rules for these channels

• 4.3. Free counters for casino games or slot machines shall not be distributed through national newspapers or free local papers with a national reach
• 6.6. No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.)

• 6.8. Games of Chance Advertising is not allowed on billboards, swanks, bus shelters and municipal advertising columns and objects with a similar purpose placed within (sight of) training institutes mainly attended by Minors. Games of Chance Providers shall exclude such locations in their contracts with operators of outdoor advertising. Explanation: If such advertising is placed in the proximity of a field on which incidentally an event for Minors takes place, then the advertising does not have to be removed

• 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years

​

SECTION C: CINEMA, PRINT, OUTDOOR

  CINEMA

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

PRINT

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

SECTION C: CINEMA, PRINT, OUTDOOR

Applicable self-regulation and legislation 

• These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
• For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below, 2024 amends in italics. 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 with 2024 amends)

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.
• Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
• Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
• Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
• In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

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 ICC Code 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 unless the sponsor is legally allowed to be the programme producer or co-producer, media owner or financier funder;
• 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 and in social media, including any influencer involvement 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

• This section provides the broad regulatory picture for gambling marcoms in the commercial digital environment in The Netherlands. More specific channel rules such as email, OBA etc. follow
• In principle, all advertising online is subject to the rules in owned and (some) earned space as well as paid. This makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment:
• The DAC provides under article 1 Section A the definition 'any form of public and / or systematic direct or indirect commendation of goods, services and / or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising.'
• Marketers’ own marketing communications on their own websites and other online space under their control (for example their SNS pages) are also ‘in remit.’ There’s a specific header on own websites later in this section C

The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing these channels' rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries  

Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence

Rules for these channels

8. Channels: restraint 

• 8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising

  
  Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words.

  At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
   

• 8.2. Online gambling operators may not advertise in or around online games and also may not allow third party advertising for online games on their channels. For example, advertising for online games of chance on a web page where casual games of skill are offered is not permitted

• 8.3. On a game of chance interface of an online gambling operator no other advertising may appear other than advertising for the online games of chance for which the relevant gambling operator has obtained a licence 

• 8.4. It is clearly stated on an online gambling provider’s social media accounts that it is an official account of the relevant online gambling provider

9. Channels: Vulnerable Groups of people

• 9.2. Article 9.1 (which prohibits 'untargeted' advertising) does not apply to advertising via the internet or via an on-demand media service, if the online gambling provider: a. Has given people the opportunity to state that they do not wish to be exposed to the advertising; b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people; c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults
• 9.3. The online gambling provider must not advertise: a. Where the information as referenced in Article 8 Paragraphs 1 and 2 of the BWRVK is provided; and b. Where a player states the limits of his playing practices or with the information provided about his playing practices
• 9.4. (part) Online gambling providers may not send targeted bonuses or other advertising for online gambling to people who have excluded themselves or with whom there has been an intervention, for example in the form of e-mails addressed to them or banners targeted at them

• 9.5. With the exception of bonuses, targeted advertising for online games of chance may be sent to persons with whom one of the following interventions has taken place: a. If that person has been made aware of their playing practices by the sending of messages on the player interface; b. If that person has been advised to make use of a facility that provides a simple means to get insight into their playing practices: In the case of one of these interventions, bonuses may be sent after 30 days after the relevant intervention in case a) and after 60 days in case b)​

​

Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players

Rules for these channels

6. Vulnerable groups 

• 6.1. Games of Chance Advertising shall not be specifically directed at socially vulnerable persons. Explanation: A Games of Chance Provider shall not specifically target for instance Minors and persons he knows to present characteristics of risky gaming behaviour, e.g. because such persons are known to the provider as having an active ban on entry or participation in Games of Chance by reason of gaming problems. Socially vulnerable persons cannot be prevented from being faced with unaddressed advertising. In that case paragraph 3 of this article Games of Chance Advertising does not take advantage of the specific weaknesses or needs of socially vulnerable persons applies to such advertising.
• 6.2. Socially vulnerable persons are in any case Minors, games of chance addicts and persons presenting risky gaming behaviour
• 6.6. No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.)

• 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years​​

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

• The online channel is subject to significant legislation in unsolicited commercial communications and e-Commerce; the Telecommunications Act NL / EN article 11.7 implements the e-Privacy Directive 2002/58/EC on the consent requirements for sending unsolicited commercial communications by email, fax, phone, and automated calling systems
• Information requirements for information society services and sending of online commercial communications as per e-Commerce Directive 2000/31/EC can be found in Articles 15d and15e Book 3 Dutch Civil Code EN / NL 
• If data processing related to electronic communications involves personal data (that which identifies individuals), then the GDPR may apply. Check with advisors
• A significant issue online, and in the gambling sector, is the recognisability of commercial communications. There are provisions in article 15e of Book 3 of the Dutch Civil Code linked above which include: ‘that the commercial communication is clearly recognisable as such’
• The issue is also covered by Article 11.1 DAC: ‘An advertisement shall be recognizable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended.’ Further information under the General tab below
• If advertising constitutes an ‘Invitation to purchase’ Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase Article 193e from Book 6 of the Dutch Civil Code (EN) covers information requirements. The linked translation does not include amends to this article from the transposition of search ranking and consumer survey requirements from Directive 2019/2161. Clauses are shown here in English as reflected in the DAC under article 8. The Jan 2023 NL version of article 193e is here 

Code for distribution of advertisements by email EN

Social Media and Influencer Marketing Code (2022) EN

Rules are set out below under the General tab

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

CONTEXT 

This section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in owned and (some) earned space as well as paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment The DAC definition is ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’  The impact of GDPR is shown under individual channel sections; in broad, when processing personal data lawful processing rules from the GDPR may now apply. Privacy issues should be reviewed with specialist advisors

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

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

RECOGNISABILITY: SELF-REGULATION

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

RECOGNISABILITY: LEGISLATION

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

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

• The Dutch Civil Code Book 6 (EN; not up-to-date with May 2022 clauses; see section A Overview and section B Content), home of some commercial communication rules from the Unfair Commercial Practices Directive 2005/29/EC, includes misleading omission rules under article 193d; under article 193g - Commercial practices which are misleading in all circumstances - point v: falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer; and k: using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (‘advertorial’)
• The Media Act (NL; Jan 2023), since its amendment as a result of Directive 2018/1808 bringing video sharing platforms into remit, is interpreted to include Influencers/ 'video uploaders' in its scope. The media authority CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022 which require Influencers with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protetction measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration was by July 15, 2022

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety, 

Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024

EASA on the above and two calls for tender August 8, 2024

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 2024), 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 

•  

Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.

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

2024 amends in italics; there are some 20 articles in this section of the code  

C2. 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 communications, as well as the identity of the marketer, should be transparent to the consumers in accordance with Articles 7-8 of the General Provisions. 
• 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

Article C3 – Presentation of the offer
 

The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions

C2. Identity of the marketer

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

SECTION C: COOKIES AND OBA

Privacy issues should be reviewed with specialist advisors

• Specific rules re targeting of online gambling advertising to vulnerable groups (as well as minors) are shown below; these do not specify cookies, but it's clear that great care should be taken with how users or potential users, especially minors and others who are 'vulnerable', in this sector are tracked 
• Statutory rules for online gambling and data include under article 4a of the Gambling Act (NL): 'In recruitment and advertising activities for games of chance, a license holder will in any event not use the personal data of participants processed in the context of another game of chance referenced in this Act.'
• The general cookie rules, i.e. those that apply to all sectors gambling included, are shown below under the General tab; these were amended in March 2015 to exclude the consent requirement for cookies that ‘have little or no impact on the privacy of end-users’. Full information under the General tab below

• The content rules set out in section B apply - both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B for the latter
• Principal source of rules for gambling marcoms are the Games of Chance codes linked above and for general rules, applicable to all sectors, it's Section A – Dutch Advertising Code (DAC; EN)
• Channel rules from October 2021 related to the introduction of online gambling include under article 4a of the Gambling Act (NL): 'In recruitment and advertising activities for games of chance, a license holder will in any event not use the personal data of participants processed in the context of another game of chance referenced in this Act.'
• The general channel (i.e. placement) rules also apply; these are set out under the General tab below; the processing of personal data in this context may be subject to lawful processing rules from the GDPR, and there are information requirements when making an 'invitation to purchase.' More below under the General tab

The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries  

Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence

Rules for these channels

• 9.2.Article 9.1 (which prohibits 'untargeted' advertising) does not apply to advertising via the internet or via an on-demand media service, if the online gambling provider: a. Has given people the opportunity to state that they do not wish to be exposed to the advertising; b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people; c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults
• 9.3. The online gambling provider must not advertise: a. Where the information as referenced in Article 8 Paragraphs 1 and 2 of the BWRVK is provided; and b. Where a player states the limits of his playing practices or with the information provided about his playing practices

• 8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising

  
  Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words.

  At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.
   

• 8.2. Online gambling operators may not advertise in or around online games and also may not allow third party advertising for online games on their channels. For example, advertising for online games of chance on a web page where casual games of skill are offered is not permitted

• 8.3. On a game of chance interface of an online gambling operator no other advertising may appear other than advertising for the online games of chance for which the relevant gambling operator has obtained a licence

• 8.4. It is clearly stated on an online gambling provider’s social media accounts that it is an official account of the relevant online gambling provider

  ​

Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players

Rules for these channels

• Article 6.1. Games of Chance Advertising shall not be specifically directed at socially vulnerable persons. Explanation: A Games of Chance Provider shall not specifically target for instance Minors and persons he knows to present characteristics of risky gaming behaviour, e.g. because such persons are known to the provider as having an active ban on entry or participation in Games of Chance by reason of gaming problems. Socially vulnerable persons cannot be prevented from being faced with unaddressed advertising. In that case paragraph 3 of this article Games of Chance Advertising does not take advantage of the specific weaknesses or needs of socially vulnerable persons applies to such advertising.
• Article 6.2. Socially vulnerable persons are in any case Minors, games of chance addicts and persons presenting risky gaming behaviour
• Article 6.6 No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.)

• Article 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years

SECTION C: COOKIES AND OBA

COOKIES

Privacy Sandbox news and updates
DPA issues new guidance & steps up supervision
Osborne Clarke/ Lex Feb 15, 2024
The EU "Cookie Pledge" Preiskel & Co/ Mondaq 12 June 2023. Pledge here 
Privacy Sandbox next steps May 18, 2023

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

SECTION C: COOKIES AND OBA

Consent or pay: one rule for some (large online platforms),

another rule for everyone else? Weil Gotshal & Manges 30/8/24

A new path for Privacy Sandbox on the web July 22, 2024

Third party cookie plans for Chrome. WFA view here 

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8

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

• Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR

As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries  

Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence

Rules for this channel

• 9.2.Article 9.1 (which prohibits 'untargeted' advertising) does not apply to advertising via the internet or via an on-demand media service, if the online gambling provider: a. Has given people the opportunity to state that they do not wish to be exposed to the advertising; b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people; c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults

• 8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising

  
  Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words.

  At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.​

​

Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players

Rules for this channel

• Article 6.1. Games of Chance Advertising shall not be specifically directed at socially vulnerable persons. Explanation: A Games of Chance Provider shall not specifically target for instance Minors and persons he knows to present characteristics of risky gaming behaviour, e.g. because such persons are known to the provider as having an active ban on entry or participation in Games of Chance by reason of gaming problems. Socially vulnerable persons cannot be prevented from being faced with unaddressed advertising. In that case paragraph 3 of this article Games of Chance Advertising does not take advantage of the specific weaknesses or needs of socially vulnerable persons applies to such advertising.
• Article 6.2. Socially vulnerable persons are in any case Minors, games of chance addicts and persons presenting risky gaming behaviour
• Article 6.6 No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.)

• Article 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years

• The content rules for gambling advertising set out in section B should be observed in this channel, as should the general advertising rules, i.e.those for all sectors
• Rules include under article 4a of the Gambling Act (NL): 'In recruitment and advertising activities for games of chance, a license holder will in any event not use the personal data of participants processed in the context of another game of chance referenced in this Act.'

​

Legislation

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

Self-regulation

Full information under the General tab below

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

KEY RULES AND THEIR SOURCE 

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

SELF-REGULATION

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

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

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark 

Posted June 2024

• 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 2024), 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 also apply
• 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 

SECTION C: MARKETERS' OWN WEBSITES

• These spaces are in remit in the Netherlands; that means that marketers’ communications on their own websites are subject to regulation where communication qualifies as advertising/ marketing 
• Advertising is defined in Article 1 of the Dutch Advertising Code (EN) as “any form of public and / or systematic direct or indirect commendation of goods, services and / or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party. The solicitation of services is also defined as advertising”.

​

The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries  

Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence

Rules for this channel

• 9.2.Article 9.1 (which prohibits 'untargeted' advertising) does not apply to advertising via the internet or via an on-demand media service, if the online gambling provider: a. Has given people the opportunity to state that they do not wish to be exposed to the advertising; b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people; c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults

• 8.1. Operators of Online Games of Chance must provide their players with an options menu in their personal environment (for example, a “dashboard”) that enables players to easily set their preferences with regard to receiving and/ or seeing advertisements, including an option to directly unsubscribe from all individual advertisements disseminated under the control of the relevant operator of online games of chance, in which regard the operator of online games of chance is able to identify the player who unsubscribed. Unsubscribing in the manner described above does not mean that the player will no longer see advertising from the relevant operator of online games of chance. For example, the player may see advertising that is targeted using such limited data that it is not reasonably possible to identify the player in question (targeted on the basis of a limited profile, for example), while complying with the regulations applicable to the provision of that advertising
   

Offering software or a dashboard in which data subjects, players, can manage their privacy preferences themselves, is an important privacy tool. The ROK prescribes this in so many words. At variance from the rules concerning unsubscribing to e-mail advertising, for example, the ROK requires it to be possible for the data subject/player directly to unsubscribe from all individual advertising. The reasoning behind including this broader option for unsubscribing here is more in the interest of preventing addiction than in the interest of privacy. This is because it is conceivable that a player wants to ensure by unsubscribing that they are no longer tempted to participate in an online or other game of chance.​

• 8.2. Online gambling operators may not advertise in or around online games and also may not allow third party advertising for online games on their channels. For example, advertising for online games of chance on a web page where casual games of skill are offered is not permitted
• 8.3. On a game of chance interface of an online gambling operator no other advertising may appear other than advertising for the online games of chance for which the relevant gambling operator has obtained a licence 8.4. It is clearly stated on an online gambling provider’s social media accounts that it is an official account of the relevant online gambling provider

12. Information on responsible participation
 

• 12.1. With each separate advertisement and in each (social) media account of the online gambling provider, the following information will be provided immediately clearly visible or audibly: a. The minimum age required for participation; b. The slogan ‘what does gambling cost you? Stop on time, 18+’ or its successor; (‘wat kost gokken jou? Stop op tijd, 18+’) c. Online (on websites, email and social media), the warning that the content should not be shared with minors and young adults; d. The web page(s) of the online gambling provider on which the information of Article 5 (NL) of the Decree on Recruitment, Advertising and Prevention of Gambling Addiction is provided

This Article is without prejudice to the information obligations as referenced in Article 4a Paragraph 3 of the Betting and Gaming Act and Article 5 Paragraph 1 of the BWRVK

Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players

Rules for this channel

• 6.1. Games of Chance Advertising shall not be specifically directed at socially vulnerable persons. Explanation: A Games of Chance Provider shall not specifically target for instance Minors and persons he knows to present characteristics of risky gaming behaviour, e.g. because such persons are known to the provider as having an active ban on entry or participation in Games of Chance by reason of gaming problems. Socially vulnerable persons cannot be prevented from being faced with unaddressed advertising. In that case paragraph 3 of this article Games of Chance Advertising does not take advantage of the specific weaknesses or needs of socially vulnerable persons applies to such advertising.
• 6.2. Socially vulnerable persons are in any case Minors, games of chance addicts and persons presenting risky gaming behaviour
• 6.6 No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.)

• 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years

• 4. On the Internet page of the Games of Chance Provider, information can be obtained and perused regarding: The specific features of the Games of Chance provided; The costs of participation; Other obligations related to participation or winning a prize; The ban on participation by minors; How to participate in a sensible way in games of chance, the risk of addiction to games of chance and where to find assistance in case of addiction to games of chance; What the risks are of excessive participation in Games of Chance; The form of participation: does it concern a one-time participation or a subscription; and

• The manner of terminating the participation in Games of Chance; The manner in which the participant can easily unsubscribe to addressed advertising mail with the provider; The guarantee of privacy of the prize winners; The manner in which winners of big prizes can get independent advice about financial and legal matters; The development of the game, the (statistical) chances to win the different prizes, unless this is not feasible in practice, the determination of profit, the possible withholding of games of chance tax; The notice participants who have given permission for payment by direct giro of banking debit, can expect one month ahead, about a price increase or other changes in the game conditions; Volume and allocation of the profits of the Games of Chance. This point does not apply to operators of slot machines

• Gambling advertising content rules from our earlier section B will apply to communications qualifying as marketing communications / advertising​
• Rules include under article 4a of the Gambling Act (NL): 'In recruitment and advertising activities for games of chance, a license holder will in any event not use the personal data of participants processed in the context of another game of chance referenced in this Act.'

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

SECTION C: MARKETERS' OWN WEBSITES

CONTEXT

The same principle that applies in paid space also applies in owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. Advertising is defined in the applicable Dutch Advertising Code (EN) as ‘any form of public and/ or systematic direct or indirect commendation of goods, services and/ or ideas by an advertiser or, either wholly or partly, on behalf of him, with or without the help of a third party.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA Recommendation linked below.

In the event that data processing identifies individuals, then lawful processing rules from the GDPR may apply. Privacy issues should be reviewed with specialist advisors

 SELF-REGULATION

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

• Social Code YouTubers NL / EN. This is a code written by YouTubers for YouTubers 

LEGISLATION

See linked documents for clauses. These are not set out below 

• Article15d Book 3 Civil Code EN requires ‘Providers of Information Society Services’ Definition Any service which is usually performed in exchange for a financial consideration, at or from a distance by electronic transmission, at the individual request of the consumer of the serviceto make available to users certain information about the operator and its services; transposed from the e-Commerce Directive 2000/31/EC; clauses shown below 
• Article 193e from Book 6 of the Dutch Civil Code (EN) on Invitation to Purchase Definition Commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase
• In May 2022, Paragraphs 2 and 3 have been added to the above article as a result of amendments from Directive 2019/2161 related to search rankings and consumer reviews. These are shown in the NL version of the article, which appear to be transposed faithfully from the Directive and are shown here in a separate EN file 
• If communicating with users, then personal data may be processed, which may require observation of the GDPR; equally, consent to marketing communications from the Telecommunications Act Article 11.7 (EN), which deals with cookie regulation and establishes the opt-in principle, may apply; check with advisors
• The Media Act (NL, March 2022) carries provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms (Chapter 3a), who must recognise the DAC/AVMS rules for commercial communications relating to recognisability; additionally, article 3a/5 pt. 4 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider
• Building on the above, the media authority CvdM issued rules (NL; EN summary here) in May 2022, effective July 1, 2022, which require Influencers/ 'video uploaders' with more than 500k subscribers/ followers and who post more than 24 videos annually to register with CvdM, with the advertising SRO and with NICAM, the latter for child protection measures. There is considerable emphasis in the rules on recognisability of posts where these are commercial. Registration was by July 15, 2022. While the rules apply to Influencers, advertisers and agencies obviously need to be aware of them for contractual issues. Helpful commentary here from Osborne Clarke/ Lex May 2022​

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

Directive 2005/29/EC on unfair commercial practices (UCPD)

Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)

EASA Best Practice Recommendation on Digital Marketing Communications 2023

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

SECTION C: NATIVE ADVERTISING

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. Native advertising is like any other advertising – it’s subject to the content rules; in this context, those that are set out under our earlier content section B.

The key general rule is that of identifiability/ disclosure. Various regulations, the most significant of which is Article 11.1 DAC (EN): ‘An advertisement shall be recognizable as such by virtue of its lay-out, presentation, content or otherwise, taking into account the public for which it is intended’ cover the issue in slightly different ways, but all are clear that advertising must be identifiable as such. Further information under the General tab below

The self-regulatory framework (the dominant influence in gambling advertising regulation and closely reflecting the law) in The Netherlands is relatively complex as there are two codes – the Online Games of Chance Code and the elegantly titled Advertising Code for Games of Chance Offered by Licensees, by Virtue of the Betting and Gaming Act 2015 (we refer to it below as the Games of Chance Code). While there’s some overlap in content rules, the former, online code, carries considerably tougher rules in channel (placement) especially. We have tried to make matters as simple - or clear - as possible, by separating them below and showing this channel's/ technique's  rules for each. Scope and key definition for each code is also shown - under the header - but the easiest way to think about these codes is that substantially the most important, due to profile and spend, is the Online version which covers, essentially, remote/ online gambling while the second of the Games of Chance codes is, basically, the ad rules for offline games of chance including e.g. lotteries  

Scope is here This code applies to advertising by licensed online games of chance providers for online games of chance, if and insofar as such advertising is also aimed at the Netherlands. This code does not affect the Gambling Act and the relevant regulations based on that law, such as the Decree on Recruitment, Advertising and Prevention of Gambling Addiction (which regulates, among other things, the prohibition of untargeted advertising) and the Regulation on Recruitment, Advertising and Prevention of Gambling Addiction. Game of chance definition an opportunity to compete for prizes or premiums whereby the winners are selected through any chance determination over which the participants generally cannot exercise dominant influence

Rules for this channel

• 9.2.Article 9.1 (which prohibits 'untargeted' advertising) does not apply to advertising via the internet or via an on-demand media service, if the online gambling provider: a. Has given people the opportunity to state that they do not wish to be exposed to the advertising; b. Takes the best available measures to prevent an advertisement from reaching a member of the vulnerable group of people; c. Demonstrates, using best available techniques, that at least 95% of individuals are not minors or young adults

• 7.2 (part of the 'not dishonest' rules) d. Not clarifying that the advertisement originates from or is made on behalf of an online Gambling Provider​

• 7.2. v. Government-issued approval is in place, in which regard the following statement, which must be neutral and reserved in terms of layout and otherwise, is permitted: “licensed in accordance with Dutch law”. (“bezit vergunning op grond van de Nederlandse wet”.)

​

Scope is here Advertising the games of chance provided by Licensees under the Dutch Betting and Gaming Act is, without prejudice to the general section of the Dutch Advertising Code, subject to the following special advertising code. This code applies without prejudice to advertising games of chance of the licensees by beneficiaries. Game(s) of Chance definition a game in which there is the opportunity to compete for prizes and premiums, where winners are randomly selected and, generally speaking, chances to win are not influenced by the players

Rules for this channel

• 2. Identity.The Games of Chance Provider ensures that it is clear that any Games of Chance Advertising originates from a Games of Chance Provider
• 4. Without prejudice to that provided in this code or elsewhere in the Dutch Advertising Code, information shall be given in a manner sufficiently visible to the consumer with each individual canvassing or advertising activity about: a.  the minimum age for participation in a Game of Chance; b. as per July 1, 2015 the slogan ‘Speel bewust’ (Play consciously) has been introduced; c. the internet page of the Games of Chance Provider
• 6.1. Games of Chance Advertising shall not be specifically directed at socially vulnerable persons. Explanation: A Games of Chance Provider shall not specifically target for instance Minors and persons he knows to present characteristics of risky gaming behaviour, e.g. because such persons are known to the provider as having an active ban on entry or participation in Games of Chance by reason of gaming problems. Socially vulnerable persons cannot be prevented from being faced with unaddressed advertising. In that case paragraph 3 of this article Games of Chance Advertising does not take advantage of the specific weaknesses or needs of socially vulnerable persons applies to such advertising
• 6.2. Socially vulnerable persons are in any case Minors, games of chance addicts and persons presenting risky gaming behaviour
• 6.6 No Games of Chance shall be advertised by means of and relating to media specifically directed at Minors, or parts of such media (inserts, annexes, special radio and television shows, cinema movies etc.)

• 6.10. Without prejudice to that stated elsewhere in this code, the owner of the license for organizing a casino under Article 27h(1) of the Dutch Betting and Gaming Act and the owners of a license under Article 30c(1)(b) of the Dutch Betting and Gaming Act shall not make any advertising specifically directed at persons older than 18 years but younger than 24 years

• The content rules set out in our earlier section B apply - both the gambling-specific and the general rules, i.e. those that apply to all sectors; see General tab under content section B, or Section A – Dutch Advertising Code (EN)
• In this native context, albeit a content rule, a reminder that advertising is required to carry responsibility and age messaging
• Significant self-regulatory adjudication vs Unibet here (NL)

SECTION C: NATIVE ADVERTISING

CONTEXT

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' The key issue, obviously, is that of advertising identifiability, though native advertising is like any other advertising in as much as it should observe the rules spelt out in our earlier content section B, primarily those from the Dutch Advertising Code (EN - translation does not include May 2022 clauses here)

SELF-REGULATION 

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

Identifiable/ recognisable as advertising (Art. 11)

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