General rules

General rules

 

Uploaded November 2018.

See individual countries/ sectors for updates.

Belgium

A. Overview

SECTION A OVERVIEW

 

Updates:

JEP review Feb 2020

AVMSD amend May 2020

EDPB amends Aug 2020

UBA Unstereotype Charter Sept 2020

Directive 2019/2161 Section E Jan 2021

New AV Decree March 2021

Google environmental claims Oct 2021

ICC Environmental framework 2021 (Nov)

 

 

SELF-REGULATION

 

The advertising SRO JEP applies and administers the ICC Advertising and Marketing Communications Code (EN). Applicable ICC code in French here and Dutch here. The Code is structured in two sections: General Provisions and Chapters. General Provisions are fundamental principles and other broad concepts that apply to all marketing in all media. Chapters apply to specific marketing areas:

 

Sales Promotion (A)

Sponsorship (B)

Direct Marketing and Digital Marketing Communications (C) and

Environmental Claims (D)

 

JEP also deploy sectoral codes such as the Covenant on Advertising and Marketing of Alcoholic Beverages, the Advertising Code for Foods (Fevia), Motor Vehicles (Febiac), for Cosmetic and Hygiene products (Detic), all of which are referenced and translated in their respective sectors on the WikiRegs website. Other rules relevant to this General sector are:

 

Rules on the depiction of people* FR-NL / EN

Rules on humour in advertising FR-NL / EN

2018 Influencer marketing guidelines FR-NL / EN

2019 Native Advertising Code FR-NL / EN

 

*In this context, the UBA Unstereotype Communication Charter has some influence. The original version is here in French. An English translation of the key clauses is here.

 

 

LEGISLATION

 

Book VI of the Economic Law Code (ELC) delivers in Belgium consumer protection rules from two European directives - background note here and English translation of key provisions from the ELC here. The Belgian authorities have partly extended protection to B2B transactions. Provisions can be found in the ELC translation linked earlier, articles VI. 103.1 and following, or clauses in English in our Content Section B. 

 

 

Channel rules 

 

Privacy issues should be reviewed with specialist advisors

 

The General Data Protection Regulation 2016/679 (GDPR) applied across Member States from 25 May 2018. The European Commission page on GDPR is hereOn 10/01/2018 the national Law of 3rd Dec 2017 replaced the Privacy Commission with the Data Protection Authority (DPA). The Law of 30 July 2018 (FR), the ‘Framework Act’, on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data. More information in relevant Channels in Section C. IAB Europe Transparency and Consent Framework is here and from May 2020 their Guide to the Post Third-Party Cookie Era. European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here.

 

 

Direct electronic communications

 

Provisions affecting (direct) electronic marcoms are under Chapter 3 (Arts. 110-115) of Book VI Economic Law Code (ELC, as above) which part-implements Article 13 of the E-Privacy Directive 2002/58/EC. The rest of Article 13 is transposed via Article 13 of Book XII ELC and Articles 1 and 2 of the Royal Decree of 4 April 2003 FR-NL / EN. Together, these set out the Consent and Information rules required in the opt-in/ soft opt-in regime that generally prevails across member states. The obligations for Information Society Service Definition any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service providers are from Articles 6, 12 and 13 of Book XII ELC EN, which implements the E-commerce Directive 2000/31/EC, requiring that certain supplier and promotional information is made easily available (normally, via a link) to consumers. Rules are spelt out in our Channel Section C under Email/ SMS, or see the linked file.

 

 
AV

 

Audiovisual media falls under the competence of the three Communities: Flemish, French and German-speaking. Rules on broadcasting in the form of Media Decrees all implement (slightly differently) the AVMS Directive 2010/13/EU (AVMSD). Amendments to the AVMSD were established by Directive 2018/1808 and transposed in Belgium by the Decree on Audiovisual Media Services and Video Sharing Services of 4 February 2021 (FR) which extends scope online and specifically to Video sharing platforms where there are new rules requiring identification of commercial communications. Rules by channel are set out in full in Section C, and AV content rules for Belgium are in Section B. Content rules in the Directive amendments are not significantly changed, though there is some potential pressure on Food advertising to children in particular. The Directive's new rules are here.

 

 
USE OF LANGUAGE

 

http://www.g-regs.com/downloads/BEUseofLanguage.pdf

 

 

SPECIFIC CLAIM AREAS
Environment

 

 

Self-Reg: the Code of Environmental Advertising FR-NL / EN from the Commission for Environmental Labelling and Advertising is administered and applied by JEP as a cross-sectoral code and supplements Chapter D Environmental claims of the ICC Code. Additional guidance on the use of environmental claims can be found in the ICC Framework for Responsible Environmental Marketing Communications (2021).

 

Legislation/ EU Guidance: the use of environmental claims in advertising may be assessed against Book VI ELC EN; for a complete picture, refer to EU Commission Guidance on environmental claims and application of the Unfair Commercial Practices Directive UCPD to such claims: section 5.1 of the  Guidance. The EU Compliance Criteria on Environmental Claims (2016) from MDEC is also helpful/ significant. The WFA launched their Planet Pledge in April 2021.

 

On 7 October 2021, Google launched a new monetization policy for Google advertisers, publishers and YouTube creators that will prohibit ads for, and monetization of, content that contradicts well-established scientific consensus around the existence and causes of climate change. More here.

 

 

 

Pricing

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in advertising with legal advisors

 

Legislation is from two sources: The Royal Decree of 30 June 1996 (as amended) on the Price Indication of Products & Services FR-NL, implementing the Product Price Directive 98/6/EC, and  Book VI ELC, which delivers UCPD 2005/29/EC. The first Directive is referenced in the CJEU Citroën/ZLW case here, which ruled that prices must be ‘final’, and include the ‘unavoidable and foreseeable components of the price.’ Similarly, Article 99 of Book VI ELC requires that 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 should state ‘the price inclusive of taxes’ and any additional/ potential charges. Article 100 carries requirements for ‘promotional’ pricing.

 

Self-Regulation: General Provisions of the ICC Code include some requirements relating to price: article 5, which refers to the requirement for a ‘total’ price, and 18.4 in the context of children and teens. Full information from legislation and Self-Regulation is under 3.2 Pricing in the following Content Section B.

 

 

 

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Read more

B. Content Rules

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

 

1. SELF-REGULATION

 

1.1. JEP General Code (from the ICC Code)

1.2. JEP Rules/ Recommendations

1.2.1. Depiction of people

1.2.2. The use of humour in advertising

 

2.  LEGISLATION

 

2.1. Misleading Commercial Practices

2.2. Unfair B2B Commercial Practices

2.3. Content of audiovisual commercial communications 

 

3.  SPECIFIC CLAIM AREAS

 

3.1. Environmental claims

 

Self-Regulation

3.1.1. Key provisions

 

Legislation/ EU/ ISO

3.1.2. Channel-specific

3.1.3. EU guidance

 

3.2. Pricing

 

3.2.1. Channel-specific

3.2.2. Self-Regulation from the ICC Code

 

Legislation and guidance 

3.2.3. Key points

3.2.4. Misleading action

3.2.5. Misleading omission/ Invitation to Purchase:

 

4. ADJUDICATIONS 

 

 

 

1.1. The JEP General Advertising Code, which is a direct transposition of the ICC Advertising and Marketing Communications Code, will apply; extracts below 

 

Basic principles (Art. 1)

 

  • All marketing communications should be legal, decent, honest and truthful
  • All marketing communications should be prepared with a due sense of social and professional responsibility and should conform to the principles of fair competition, as generally accepted in business
  • No communication should be such as to impair public confidence in marketing

 

 

Social responsibility (Art. 2)

 

  • Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation
  • Marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
  • Marketing communications should not play on superstition

 

Decency (Art. 3)

 

  • Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned

 

Honesty (Art. 4)

 

  • Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge
  • Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account

 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:

 

  • Characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
  • The value of the product and the total price to be paid by the consumer
  • Terms for delivery, exchange, return, repair and maintenance
  • Terms of guarantee
  • Copyright and industrial property rights such as patents, trade marks, designs and models and trade names
  • Compliance with standards
  • Official recognition or approval, awards such as medals, prizes and diplomas
  • The extent of benefits for charitable causes

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Such substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code
 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews
 

Identity of the marketer  (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty
  • The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called ‘teaser’ advertisements)

 

 

Comparisons (Art. 11)

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected
 
  • Other main articles from the General Provisions of the Code are: 9. Use of Technical/ scientific data and terminology; 10. Use of free and guarantee; 12. Denigration; 13. Testimonials; 14.Portrayal of people and property; 15. Exploitation of goodwill; 16. Imitation; 17. Safety and health; 18. Children and young people; 19. Data protection and privacy; 20. Transparency on cost of communication; 21. Unsolicited products and undisclosed costs; 22. Environmental behaviour
  • Chapters from the Code are Sales Promotion, Sponsorship, Direct Marketing and Digital Marketing Communications, Environmental Claims in Marketing Communication
  • Where the rules are channel-related, they are shown in our following Channel Section C

 

 

 

1.2.1. Rules on the depiction of people ENNL-FR

 

1. Every advertisement should be prepared with a due sense of social responsibility and cannot be such as to impair public confidence in advertising (Art. 1 ICC Code)

2. Advertisements should not contain statements or visual presentations which offend prevailing standards of decency (Art. 2 ICC Code)

 

  • Depending on the feeling/ sensitivity of society at a given time, the public audience exposed to the advertising, the social or cultural contexts, and its evolution as well as the validity (currency/ relevance), it is desirable that the advertising does not devalue or abuse the human being which, by spreading an image infringing their dignity and decency, is likely to shock or even offend the public. In this regard, it is appropriate to pay attention to the tone of the messages and their visual presentation
  • The representation of the human body in whole or in part cannot be of an indecent or obscene nature. Special care must be taken when the representation (depiction) of the human body is unrelated to the product and its objective and subjective characteristics. When advertising uses nudity, particular efforts shall be made to ensure that its representation cannot be regarded as demeaning and alienating

 

3. Advertisements should not condone any form of discrimination, including that based upon race, national origin, religion, sex or age, nor should they in any way undermine human dignity (Art. 4.1 ICC Code). Thus, the following should be avoided:

 

  • Generating contempt, disrepute or ridicule regardless of the ethnic, social, professional, economic or demographic group to which a person belongs
  • Exploiting, promoting or developing pejorative (disparaging / derogatory) comparisons based on the sex, age, race, nationality, social or professional status of individuals. Advertising cannot ignore the skills, aspirations and roles of various human and social categories.
  • Likewise, endorsing the idea of the inferiority or the superiority of a person because of their affiliation to a social group, or even promoting, directly or indirectly, feelings or behaviours of exclusion, intolerance or racism, should be avoided

 

4. Advertisers must be aware at all times to changing moral values and avoid contributing to the perpetuation (protraction/ continuance) of social prejudices or stereotypical images that run contrary to changing conditions in society (societal development) or ideas accepted by large segments of the population

 

  • This is why using stereotypes, referring to characters intended to be representative of a social, ethnic group etc. must make particular efforts to comply with the principles developed in these Guidelines
  • It is necessary to avoid inducing a sense of submission or dependence devaluing the individual/ human being or presenting in a complacent manner a situation of domination or exploitation of a person by another

 

5. Advertisements should not appear to condone or incite violence, nor to encourage unlawful or reprehensible behaviour (Art. 4.3 ICC Code)

 

  • Gratuitous use of violence, direct or implied and any incitement to violence whether physical or psychological should be avoided. The concept of violence covers at least all illegal, unlawful and reprehensible activities provided for in current legislation. Direct violence translates into (results in) the representation of the act of violence itself; implied violence means an atmosphere, indeed a context resulting in an act of violence; psychological violence includes, in particular, dominating behaviour patterns and harassment (psychological or sexual)
  • Advertising shall not under any circumstances trivialise violence through statements or presentations

 

 

1.2.2. Rules on humour in advertising (1992) ENNL-FR

 

  • As in any communication, humour is not in itself objectionable. However, since advertising is a communication with a commercial purpose, humour is subject to restrictions distinct from those found in other areas, such as editorial content in the media, or in the world of entertainment
  • Moreover, the use of humour (in written form, audio, visual, or graphic) never absolves the author or creator of the message from legal or ethical responsibility. Advertising cannot be made which is contrary to the law or rules of advertising ethics
  • So, humour must not lead to:

 

  • Deception/ misleadingness about measurable and verifiable facts
  • Denigrating or discrediting:
     
    • A product or service
    • A person or group of people
    • An institution or organisation
    • Moral, religious, philosophical or political convictions
       
  • Use of disparaging/ derogatory references or indications based on the gender, age, race, nationality, social or economic status of individuals
  • The incitement of reprehensible behaviour in terms of safety, health or social responsibility
  • The use of caricature or parody therefore requires caution and requires a case-by-case assessment. The use of prior copy advice from JEP in sufficient time before production and dissemination of the advertising is highly recommended

 

 

 

While advertising regulation is largely a Self-Regulatory system, legislation plays a part in Channel especially, but also in advertising content. Issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in Self-Regulation

 

2.1. Core rules

 

  • The key law is Book VI of the Economic Law Code FR-NL: ‘Market Practices and Consumer Protection.’ English translation of key provisions here
  • See Article 97 for misleading actions and misleading omissions, the latter of which includes rules relating to an 'invitation to purchase' Definition 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 100 represents the ‘Blacklist’. These are the provisions transposed from Annex I of the Directive 2005/29/EC that set out market practices that are ‘in all circumstances considered unfair’
  • Articles 5 and 6 from E-Commerce Directive 2000/31/E, found in Articles 6 and 12 Book XII of Code of Economic Law EN, set out information requirements in an E-commerce context

 

2.2. Comparative advertising

 

  • Under Article 17 (1), Comparative Advertising shall be permitted when it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI
  • ‘Comparative Advertising’ means any advertising that, explicitly or implicitly, identifies a competitor or goods or services offered by a competitor (Art. I.8 (14) from Chapter 4 of Book I Definitions of the ELC) 

 

 

Article 17 (Chapter V) of Book VI. Comparative advertising

 

1. Comparative advertising shall be permitted when the following conditions regarding the comparison are met:
 

  1. it is not misleading within the meaning of Articles 97 to 100, 105 (1) of Book VI; English translation of the relevant section here
  2. It compares goods and services meeting the same needs or intended for the same purpose
  3. It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price
  4. It does not create confusion among businesses, between the advertiser and a competitor or between the advertiser's trademarks, trade names, other distinguishing marks, goods or services and those of a competitor
  5. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor
  6. For goods with designation of origin, it relates in each case to goods with the same designation
  7. It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
  8. It does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name


2. All comparative advertising which does not respect the conditions laid down in § 1 shall be prohibited

 


Unfair B2B commercial practices; see Chapter 2, Book VI Arts. 105-109

Belgium has extended the scope of its legislation to B2B transactions only for certain banned practices from Annex 1 of UCPD

http://www.g-regs.com/downloads/BEGenB2BUnfPractices.pdf

 

 

2.3. Content of audiovisual commercial communications

 

 

  • The Audiovisual Media Service Directive 2010/13/EU in its original form regulated European broadcast media; as the media landscape has developed and ‘digitised’, so has the directive, with the latest amendments coming from Directive 2018/1808, extending AVMS scope online and into video-sharing platforms in particular
  • in this section we set out only the commercial communication content rules. The Directive continues to regulate e.g. AV media sponsorship, product placement, commercial communication minutage, programme sourcing etc. Where the rules affect commercial communications we show them in our following Channel Section C
  • Much of the regulation is aimed at broadcasters, social media platforms and VOD providers, versus advertisers/ agencies. Nevertheless, it is a significant influence in the European media landscape for all brands; the recent amends referenced above are important for the media platforms they cover and as a result the advertising that appears in that media
  • The 2018/1808 amends are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). The translations we show below are unofficial and non-binding. These are not significantly changed versus former iterations – amends were largely to scope, i.e. where the rules apply. Key changes to Content rules in the Directive are here 
  • Belgium’s AV regulatory set-up is complex; media is a cultural matter and therefore under the supervision of individual French, Dutch or German-speaking regions. The media authorities in each region have in the past transposed directives somewhat differently. In this case, the law linked above ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish, French and German-speaking Communities’ (from a helpful blog on the subject from lawyers Baker McKenzie). We are not clear where the federal and regional rules ‘meet’; seek specialist advice if uncertain, albeit observing the Directive’s rules should keep you in good stead

 

 

Book II, Title III
(note: aimed at broadcasters/ providers)

 

Art. 2.3-1

 

Programmes and commercial communications may not be transmitted that:

 

  1. Transgress laws, decrees and regulations or are counter to the general interest
  2. Offend human dignity
  3. Contain public incitement to commit a terrorist offense as referenced in article 137 of the Criminal Code
  4. Promote a current of thought, belief or opinion that constitutes a threat to democracy, human rights and fundamental freedoms guaranteed by the Constitution or the European Convention on Human Rights or seek to undermine the good faith of the public
  5. Are inclined to deny, minimise, justify or approve of the genocide committed by the German National Socialist regime during World War II, as well as any other form of genocide
  6. Constitute offenses relating to racism and xenophobia referenced in the law of July 30, 1981 to repress certain acts inspired by racism and xenophobia
  7. Constitute offenses related to child pornography, within the meaning of article 383 bis of the Criminal Code

 

 

Art. 2.3-2

 

  • All providers of video sharing services must take appropriate measures to protect the user from user-generated programmes and videos encountering the situations referenced in article 2. 3-1
  • Other provisions related to video-sharing services are found in this section of the Decree but are not directly related to content of commercial communications; see Section C/3 Online Commercial Communications 

 

 

Book II, TITLE IV
Women's rights, equality and non-discrimination

 

Art. 2.4-1

 

Programmes and commercial communications may not be transmitted that:

 

  1. Undermine respect for equality between women and men or contain or promote discrimination or incitement to discrimination, hate, or violence based on sex or similar criteria which are in particular pregnancy, motherhood, sex change, gender expression, gender identity or including incitement to violence against women and domestic violence
  2. Comprise or promote discrimination or incite discrimination, hatred or violence, in particular on the grounds of nationality, assumed race, skin colour, ancestry or national origin or ethnicity, age, sexual orientation, religious or philosophical belief, disability, marital status, birth, wealth, political belief, language, current or future state of health, a physical or genetic characteristic, social background or membership of a union

 

 

BOOK V
Commercial communication

 

Title I general provisions includes definitions not shown here

 

Title II. Commercial communications in linear and non-linear services

 

  • Art. 5.2-1. Commercial communication must not transgress laws, decrees, regulations and European directives as well as the regulations of the advisory committee of the Audiovisual Council (CSA) referenced in Article 9.1.2-1, sections 1 and 2, and approved by the Government, which regulate advertising in general or advertising for certain products or services
  • Art. 5.2-2. In addition to compliance with the provisions of Book II, Titles 3 and 4 (see above), commercial communication may not:

 

  1. Encourage behaviour prejudicial to health or safety, in particular by promoting violent behavior
  2. Encourage behaviour prejudicial to the protection of the environment
  3. Contravene the rules on literary, artistic and industrial property and the right of personal portrayal
  4. Contain references to a specific person or institution, of statements or declarations from them, without their permission or that of their dependents
  5. Be about attachment to a religious or philosophical belief

 

  • Art. 5.2-3. Commercial communication must not cause physical, mental or moral detriment to minors and in particular in this context must meet the following criteria for their protection:

 

  1. It cannot encourage excessive consumption of food products and drinks containing trans fatty acids, salt, sodium or sugars, the regular intake of which is not recommended for health; the Advisory Board of the CSA drafts and updates one or more codes of conduct allowing the establishment of proven guidelines on the basis of best practice designed to ensure compliance with this point
  2.  It must not directly encourage minors to buy or hire a product or service by exploiting their inexperience or credulity
  3. It must not directly encourage minors to persuade their parents or third parties to buy the products or services concerned
  4. It must not exploit the special trust that minors have in their parents, teachers or other persons
  5. It must not unreasonably show minors in a dangerous situation

 

Art. 5.2-4

 

  1. Commercial communication must be easily identifiable as such. It must be clearly separated from programmes or programme sequences by clearly identifiable optical or acoustic means
  2. Any direct or indirect reference in the commercial communication of the programme or programme sequence likely to create confusion as to the commercial nature of the communication is prohibited
  3. Commercial communication must not use subliminal techniques
  4. The volume of commercial communication spots, as well as the announcements that precede and follow them, must not intentionally fluctuate, by whatever means, with respect to the rest of the programmes
  5. Surreptitious commercial communications are prohibited
  6. The second sentence of § 1 is not applicable to sponsorship, virtual advertising and product placement. The second paragraph is not applicable to sponsorship and self-promotion

 

 

 

3.1. Environmental Claims

 

Self-Regulation

 

  • The Advertising Code in Belgium is a direct transposition of the ICC Code; in particular, Chapter D Environmental Claims in Marketing Communications
  • The Code of Environmental Advertising FR-NL / EN (CEA) mirrors the principles and provisions in the ICC Code 
  • ICC Framework for Responsible Environmental Marketing Communications 2021 provides 'added guidance on some established environmental claims and additional guidance on some emerging claims'. Appendix I carries an Environmental Claims Checklist

 

 

3.1.1. Key provisions

 

We set out below only the clauses from the most significant of several national self-regulatory influences, the Code of Environmental Advertising (CEA), which closely reflects the ICC Code’s Chapter D:

 

  • Advertising must be designed so as not to exploit the concerns of society as a whole on environmental issues, or exploit any lack of knowledge in this field
  • Advertising may not encourage, nor appear to endorse or promote, behaviour or actions that conflict with the protection of the environment, especially under the law or self-regulatory codes
  • Advertising may not contain a claim, designation (sign/ mark/label), illustration or representation that is likely to mislead directly or indirectly on the properties and characteristics of a product or service related to its environmental impact
  • When advertising refers to the contribution of a company or group of companies to environmental protection, the reference to products, services or particular actions/ practices cannot give the impression without justification (substantiation) that they are representative of the entire activity of a company or group of companies
  • When the qualities or benefits of a product or service in terms of environmental impact depend on conditions or special rules for consumption or use, advertising must specify them or failing that, the advertiser must be able to demonstrate/ provide evidence that the consumer information is provided
  • References to environmental impact cannot give the impression they apply to more stages of the life cycle of the product or service or to more properties of the product or service than is actually the case and must clearly indicate the stage of the product cycle or the property to which they apply
  • Expressions, claims/ statements or absolute slogans such as, for example, ‘good for the environment’ (FR: bon pour l'environnement NL: milieuvriendelijk) ‘environmentally/ ecologically safe’ (FR: écologiquement sûr NL: ecologisch veilig), ... implying that a product or service has no impact/ effect on the environment whatever the stage of its life cycle, are prohibited, without evidence established under Article 14 of this Code
  • If the advertisement refers to the absence or a reduced proportion of ingredients or elements having an effect on the environment compared with the same category of products or services previously placed on the market, it must be clearly stated what has been reduced. Possible replacement elements must bring a significant reduction in environmental damage, which will have to be proved/ substantiated in accordance with Article 14
  • Advertising can use scientific reasoning or findings on environmental impact only if they comply with the standard of proof as set out in Article 14
  • Scientific or environmental terminology is acceptable provided it is relevant and easily understood by consumers. Any confusion on this point must be avoided
  • Testimonials or certificates can only be used to support arguments referring to environmental impact if their content is in line with the state of development of science or technology in this area, given the composition of the product or service and market conditions at the time of their use
  • Advertising cannot suggest false superiority or disparage other products or services that are similar in terms of environmental impact. Environmental superiority over competitors can only be claimed if a significant advantage can be demonstrated
  • Signs or symbols on environmental impact cannot be misleading or cause confusion about their meaning. These signs or symbols must not falsely imply official approval
  • The advertiser must be able to justify/ substantiate with certainty and without delay any claim, designation (name/ mark/ label), illustration or representation referring to environmental impact. To be valid, the evidence must, in the case of a challenge, be approved by an organisation or person accepted by the parties concerned, provided it is deemed necessary by the supervisory body of the Code (i.e. JEP)

 

 

Legislation/ EU/ ISO

 

3.1.2. Channel-specific

 

The AVMS Directive 2010/13/EU carries an environmental claim provision under Article9/ iv: audiovisual commercial communications shall not: encourage behaviour grossly prejudicial to the protection of the environment. This provision is transposed in the February 2021 Decree on audiovisual media services and video sharing services under article 5.2.-2 in Book V, Title II, losing the word ‘grossly’ along the way

 

3.1.3. EU guidance

 

  • EU Compliance Criteria on Environmental Claims (2016) EN. The advice reflects common understanding on the application of the UCPD in this area. This advice is not legally binding, but has fed into the revision of the updated Commission Guidance on the application of the UCPD EN  
  • EU Commission Guidelines for making and assessing environmental claims: EN. The guidelines, which are consistent with the international standard ISO 14021-1999, contain references to environmental claims that should be deemed misleading. Note: Now revised by ISO 14021:2016, which specifies requirements for self-declared environmental claims, including statements, symbols and graphics. It also sets out terms commonly used in environmental claims, gives qualifications for their use, and describes a general evaluation and verification methodology

 

 

 

Pricing in advertising is often a source of complaint, both consumer and competitor, and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors

 

3.2.1. Channel-specific

 

a) TV/ Radio

 

  • Price statements should not be such as not to cause children to minimise the real value of the product or service. No advertising aimed at children should imply that the product or service is within the reach of any family budget (Point 6 CSA’s Advice Note FR)
  • Commercial communications may not contain elements that are aimed at misleading the consumer as regards: the price or the way in which the price is calculated, as well as the conditions subject to which the goods are delivered or services are provided (Art. 60.1.2 FlMD EN)

 

b) Online/ e-commerce

 

  • Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included Art. 6 (2) Book XII of Code of Economic Law (EN)

 

3.2.2. Self-Regulation; from General Provisions of the ICC Code

 

  • Marcoms should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them. Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget (Art. 18.4 Children and Young People, ICC Code)
  • The term 'free', e.g. 'free gift' or 'free offer', should be used only:
     
    • Where the offer involves no obligation whatsoever; or
    • Where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
    • In conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer (Art. 7: use of 'free', ICC Code)
       
  • Marcoms should be truthful and not misleading. Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to: the value of the product and the total price to be paid by the consumer (Art. 5: Truthfulness, ICC Code)

 

Legislation/ case law

 

  • Product Pricing Directive 98/6/EC implemented via Royal Decree of 30 June 1996 concerning the indication of the price of products and services FR-NL
  • Case law CJEU Citroën/ZLW case C‑476/14
  • Book VI of the Economic Law Code (FR / NL) Market Practices and Consumer Protection; English translation of key provisions here (Arts. 99 and 100)

 

 

3.2.3. Key points

 

  • Where advertising states the price of a product, the selling price should be stated; selling price is defined in the PPD linked above as the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Art. 2a, PPD)
  • The Directive was referenced in the Citroën/ZLW case C‑476/14 where it was ruled: ‘As a final price, the selling price must necessarily include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the ‘pecuniary consideration for the acquisition of the product concerned’ (para. 37, Citroën case)

 

 

3.2.4. Misleading action

 

  • A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer in relation to: the price or the manner in which the price is calculated, or the existence of a specific price advantage (italics ours) even if the information is factually correct, and in either case it causes or is likely to cause him to take a transactional decision that he would not have taken otherwise (Art. 97.4 Book VI CEL)

 

 

3.2.5. Misleading omission/ Invitation to Purchase

 

In the case of an 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 (Art. I.8 (23) Book I CEL) it will be regarded as a misleading omission if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits:

 

  • The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
 

 

 

Adjudications from JEP are here. There's a search facility on these pages

A high profile decision on influencer marketing was published mid-September 2018 here (NL), involving a very popular Flemish YouTuber promoting his merchandising in one of his videos. The complaint based upon direct exhortation to children was upheld

 

 

 
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C. Channel Rules

1. TV/Radio/VOD

SECTION C: TV & RADIO/ AV

 

 

CONTEXT AND KEY SOURCES

 

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

 

 

MEDIA AUTHORITIES AND SOME RULES/ LAWS 

 

(We no longer check and translate the individual community decrees/ rules/ decisions)

 

Per above, there are four authorities in Belgium:

 

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

 

 

Their rules are from:

 

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

 

 

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2. Cinema/Press/Outdoor

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

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

 

 

CINEMA

 

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

 

 

PRINT

 

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

 

 

OUTDOOR

 

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

 

 

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

 

 

 

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3. Online Commercial Communications

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This section provides the regulatory picture for the commercial digital environment. More specific channel rules such as email, OBA etc. follow. Advertising online is subject to the rules in Owned and (some) Earned space as well as Paid, which makes the definition of advertising important, especially as there is so much content in a ‘blurred’ online environment. The definition in Belgian law is ‘any communication for the direct or indirect purpose of promoting the sale of products, irrespective of the place or the means of communication used’. 

 

 

SELF-REGULATION

 

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

 

Below are a few of the key articles extracted from the first and most significant of the Codes linked above - Chapter C of the ICC Advertising and Marketing Communications Code. We have downloaded the full Chapter here. Other Codes referenced above are also placed/ set out under more directly relevant headers that follow

 

 

 

Article C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • 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 C2. Identity of the marketer

 

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

 

 
Article C3. The offer

 

  • The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion
 

 

INFLUENCER MARKETING ONLINE

 

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

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

 

The document linked above, published October 2018 by the Advertising Council, sets out the rules/ guidance on the issue of Online influencer Marketing: when commercial communications qualify as such and what kinds of identification are required

 

 

LEGISLATION

 

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

 

 

Information requirements

 

 

Article 12 Book XII and Q.16 Spamming Q&A

 

These requirements apply to all commercial communications that are part of or that constitute information society services 

 

  • Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, and including its presentation.  If this is not the case, it shall contain the word: ‘advertising’ (reclame/ publicité) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
     
    • The word ‘advertising’ is only required if the advertising nature is not immediately clear. This assessment is made on a case-by-case basis according to the circumstances
    • For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain the word 'advertisement'
    • On the other hand, the more the advertising banner adopts a similar design to the non-advertising elements of the site, the less likely this banner will be considered 'identifiable' as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from just informative messages, if it wants to avoid having to mention the word 'advertising' (Q. 16, Point 1 in FPS Economy: Spamming Q&A)
       
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
  • Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions to take advantage of the offer/ participate should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
     
    • The explanatory memorandum states: "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)
 

Article 6 Book XII 

 

Note: this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’

 

  • § 1. In addition to other legal and regulatory information requirements, every service provider shall ensure that the recipients of the service and competent authorities have easy, direct and permanent access to at least the following information:

 

  1. the name or the trade name of the service provider
  2. geographic address at which the service provider is established
  3. contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
  4. where applicable, the business number (i.e. business registration number)
  5. in the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. regarding regulated professions:

 

  1. the trade association or professional body to which the service provider is registered
  2. the professional title and the state where has been granted
  3. a reference to the applicable professional rules and means to access them

 

  1. where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in Article 50 of the Code on VAT
  2. codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically

 

 

  • § 2. Notwithstanding other legal and regulatory information requirements in the field of price indication, the information society services that refer to prices shall indicate them clearly and unambiguously, and in particular must indicate whether taxes and shipping costs are included

 

 

GDPR

 

Privacy issues should be reviewed with specialist advisors 

 

  • Processing personal data (that which can identify an individual) may occur across a number of online channels: as those channels may also be subject to specific privacy rules it's not always clear which rules to follow when the GDPR definition of 'data processing' Defined as any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction Art.4 GDPR can 'cross' various marketing techniques/ channels
  • We show the specific channel rules in the media that follow (and some above), but point out that GDPR may also need to be observed if processing personal data. Advisors will determine which/ both to follow
  • In the event that Consent is the basis for lawful processing under GDPR then the definitive guidance is from the Article 29 Working Party (now the European Data Protection Board) Guidelines on consent under Regulation 2016/679 (May 2020)
  • The national DPA’s Recommendation No 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes (FR) is the most recent and relevant national guidance. From Para 93 Profiling. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
  • IAB Europe Transparency and Consent Framework is here. European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here

 

 

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4. Cookies & OBA

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

Legislation and guidance

 

Privacy issues should be reviewed with specialist advisors

 

 

 

Key provisions (with a caveat)

  • Under Article 129 of the ECA, cookies may only be stored or accessed on an individual’s terminal equipment provided the individuals have consented after having been informed about the purposes of the data processing and their rights with regard to the processing of their data in accordance with the Data Protection/ Privacy Law, i.e. informed consent. Note: this law has been repealed and the application either of the law of 30 July 2018 or of GDPR in this context is unclear. Check with national specialist advisors, and see guidance from the January 2020 DPA Recommendation linked above
  • Users or subscribers must be given the option to withdraw their consent in a simple manner and free of charge
  • Consent within the meaning of point 2 (above) or the application of the consent exemption clauses (below), does not exempt the data controller from DPA (see above) obligations
  • Cookies are exempted from the requirement of informed consent where the cookie is used for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or
  • The cookie is 'strictly necessary' for the provision of a service explicitly requested by the user

 

 

ONLINE BEHAVIOURAL ADVERTISING (OBA)

 

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19 January 2022

 

 

Self-Regulation of OBA/IBA

 

  • Chapter C ICC Advertising and Marketing Communications Code: Direct Marketing and Digital Marketing Communications; Article C22 Provisions for Interest-Based Advertising (IBA). Note that the ICC have re-named OBA as IBA 
  • Full IBA/ OBA provisions from the Chapter have been placed in a back-up file here; alternatively, see the linked ICC Code above 

 

 

A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA).  The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link on the icon to the OBA Consumer Choice Platform http://www.youronlinechoices.eu/, a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling

 

 

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5. Emails & SMS

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

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

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

 

KEY SELF-REGULATORY CLAUSES 

 

The full chapter is extracted from the ICC Code here

 

Article C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • 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 C2.  Identity of the marketer

 

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

 

 

Article C8.  Respecting consumer wishes

 

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

 

 

KEY CLAUSES FROM LEGISLATION 

 

Electronic mail is defined as ‘any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient.’ (Art. 2.2 Book XII) 

 

 

B2C/ B2B: Opt-in system; unsolicited email commercial communications

 

  • Electronic mail may not be sent for marketing purposes without the free, prior, specific and informed consent of the recipient (Art. 13 (1) Book XII. Also inferred from Article 110 (2) Book VI Code of Economic Law)

 

 

Two exceptions to the opt-in principle (Art. 15 RD 2003)

 

The prior, free, specific and informed consent of the recipient is not required if the recipient is:

 

  1. An existing customer or client (natural or legal persons; so applicable to B2C / B2B), in which case the following conditions must be met:
     
  1. The sender has obtained the electronic contact details of its customers in the context of the sale of a product or the provision of a service, and in compliance with the privacy laws (Art. 1 (1a) RD2003)
  2. The electronic contact information is used exclusively in relation to similar products or services, which the sender itself provides (Art. 1 (1b) RD2003). See conditions in linked file
  3. The customers are given the opportunity to object, free of charge and in an easy way, to use of their electronic contact details for marketing purposes, upon collection of these details (Art. 1 (1c) RD2003). They will also need to be given the opportunity to opt out at each subsequent message (as per Art. 13 (2) Book XII)
     
  1. A legal person (i.e. B2B) and the e-mail address used for the mailing is of an impersonal nature (Art. 1 (2) RD2003); applicable to generic email addresses such as ‘info@, ‘contact@.... Where the email address is personal e.g. firstname.surname@company.be, it is regarded as an individual’s address, regardless of whether used for business or personal purposes, and requires consent (Commentary RD 2003)

 

 

INFORMATION REQUIREMENTS

 

Article 12 Book XII for commercial communications by email

 

  • The commercial communication must be clearly and immediately identifiable as such upon receipt. If this is not the case, it must contain the word: ‘advertising’ (‘reclama/ publicité’ in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable as such (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)
  • Promotional offers such as price reductions and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
  • Article 6, Book XII (EN) shows information that must be made available in an Information Society Service (E-Commerce) context; this information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’.
 

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Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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

 

 

 

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6. Own Websites & SNS

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT

 

The same principle that applies in Paid space also applies in Owned, such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s in remit. The ICC Code definition is ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour.’ Clearly, much content on owned websites won’t be advertising; for clarification of exemptions, e.g. UGC, see the EASA DMC Best Practice linked below. 

 

 

 

APPLICABLE LEGISLATION AND GUIDANCE

 

  • The 2018/1808 Directive amends to the AVMS Directive extend scope online and in particular introduce new rules to Video-sharing platform services (VSPS). Provisions are transposed in Belgium by the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR). Key changes to Content rules in the Directive are shown here and the Decree’s content rules are set out under our Content Section B, point 2.3.
  • VSPS provisions for this context are under Book V, Title V of the decree and require that its commercial communication content rules are observed and that inter alia VSPS must make make available to users posting a video a ‘transparent and user-friendly’ system for declaring whether the content contains commercial communication and that users of the service must also be informed of commercial communication content, when the service is aware of such content
  • If  processing personal data, then lawful processing rules from the GDPR apply. Privacy issues should be reviewed with specialist advisors 
  • European Data Protection Board (EDPB) Guidelines 8/2020 on the targeting of social media users adopted April 2021 here
  • The national DPA Recommendation No. 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes. Consent from Para 175. The Recommendation is GDPR and EDPB consistent
  • Book XII of the Code of Economic Law; Articles 6, 12 EN; this section of the ELC transposes the E-Commerce Directive 200/31/EC and part of the E-Privacy Directive 2002/58/EC; provisions set out below 
  • Book VI of the Code of Economic Law: ‘Market Practices and Consumer Protection’ extracts EN; transposes UCPD 2005/29/EC
  • JEP's 2018 Influencer marketing guidelines; Section 4 - application of the rules - set out below 
  • EASA best practice recommendation on influencer marketing
  • EASA DMC Best Practice; some help on exemptions to remit pps. 10/11

 

 

GENERAL INFORMATION REQUIREMENTS 

 

Article 6, Chapter 3: Information and transparency; Book XII CEL

 

Information does not have to be incorporated within messaging; the requirement is for ‘easy, direct and permanent access’

 

Every service provider Definition Provider of an Information Society Service, in turn defined as any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of the service must render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

 

  1. The name or the trade name of the service provider
  2. Geographic address at which the service provider is established
  3. Contact information, including his electronic mail address, which allows him to be contacted rapidly and communicated with in a direct and effective manner
  4. Where applicable, the business registration number
  5. In the case where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. Regarding regulated professions 
     
    1. The trade association or professional body to which the service provider is registered;
    2. The professional title and the state where has been granted
    3. A reference to the applicable professional rules and means to access them

 

  1. Where the service provider undertakes an activity that is subject to value added tax, the identification number referred to in article 50 of the code on VAT
  2. Codes of conduct to which he may be subject as well as information on how those codes can be consulted electronically  

 

 

INFORMATION IN ADVERTISING 
(Art. 12, Book XII)

 

  • Immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: 'advertising' ('reclame / publicité') in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)
  • The natural or legal person on whose behalf the commercial communication is made should be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII)
  • Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)

 

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Book VI of the Economic Law Code (EN): article 99 covers misleading omissions and § 4 requirements in the event of an 'invitation to purchase' Definition a commercial communication which indicates characterisitcs 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

 

 

  1. The main characteristics of the product, to an extent appropriate to the medium and the product
  2. The geographical address and the identity of the business, and, where applicable, the geographical address and the identity of the business on whose behalf it is acting
  3. The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. Where appropriate, the existence of a right of withdrawal or cancellation

 

 

VIRAL

 

Defined by EASA in their DMC Best Practice as  ‘Any advertising that propagates itself. In a digital media context it can be defined as a marketing technique that seeks to use pre-existing social networks to produce increases in brand awareness.’

 

 

CASE LAW AND UGC​

 

  • In a Commercial Court decision in Huy (30/06/2008) where an online dating site had a specific section on the site called "Make Some Noise" inviting users to enter email addresses of their friends in return for a higher popularity-rating, it was held that prior consent would have to be obtained (in accordance with Art. 13 (1) Book XII CEL) and that the collection of data for such purposes would have to comply with the Data Protection Act, i.e. fair processing information
  • Once created, sponsored or endorsed by the marketer (the original content may have been user-generated i.e. UGC), content is subject to the rules set out in our Content Section B, except those for broadcast, primarily from the ICC Advertising and Marketing Communications Code 

 

 

INFLUENCER MARKETING ONLINE 

 

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

http://www.g-regs.com/downloads/BEGenInfluencerRecos.pdf (EN)

 

This document linked above, published October 2018 by the AdvertisIng Council, sets out the rules/ guidance on Online Influencer Marketing: when commercial communications qualify as such, and what kinds of identification are required. JEP’s first case on influencer marketing was published mid-September 2018 here (NL), involving a very popular Flemish YouTuber promoting his merchandising in one of his videos. The complaint based upon direct exhortation to children was upheld

 

 

Section 4; application of the rules

 

  1. The online influencer makes clear, audibly or visibly, the commercial relationship with the brand, by mentioning one of the following words: Publicité, annonce, sponsoring, promotion, sponsorisé par, en collaboration avec, ..., or other similar mentions, or one of the following hashtags: #spon, #pub, #prom, #adv, #sample, # ... or other kinds of similar hashtags. Such treatment guarantees transparent communication
  2. Social networks know no (language) boundaries. Adapt the words depending on the language of the message or of the target group (reclame, advertising, promoted, ad, paid, ...)
  3. Make sure these words are stated in a way and at a place such as the recipient directly understands immediately the precise nature of the message
  4. Do not hide these words. Make sure that the average consumer notices them during normal contact with the message

 

 

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7. Native Advertising

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

 

 

SELF-REGULATION

 

 

 

Key passages from the Native Advertising Code

 

 

A1) Context and use of Identifiers

 

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

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

 

 

A2) Use of identifiers

 

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

 

« Annonce »

« Publicité »

« Publireportage »

« Advertorial »

« Promotion »

« Proposé par (…)»

« Réalisé en étroite collaboration avec (…) »

« Powered by (…) »

 

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

 

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

 

 

A3) Reference to native advertising

 

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

 

LEGISLATION

 

  • Book VI of the Code of Economic Law: 'Market Practices and Consumer Protection'; key extracts EN  (Article 100 (11) and (22) Book VI CEL)

  • Book XII of the Code of Economic Law EN (Art. 12)

 

 

All media

 

  • The following misleading commercial practices shall in all circumstances be considered unfair (and thus prohibited under Art. 95) where they have as their object:

    • Using editorial content in the media to promote a product where a business has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (Art. 100(11) Book VI);

    • Falsely claiming or creating the impression that the business is not acting for purposes relating to its professional activity, or falsely representing itself as a consumer (Art. 100 (22) Book VI)

 

 

Online

 

  • Advertising which is part of or constitutes an information society service shall comply with the following conditions: immediately upon its receipt, the advertising must be clearly identifiable as such, given its general impression, including its presentation.  If this is not the case, it shall contain the word: “advertising” (“reclame / publicité”) in a legible, clearly visible and unambiguous manner (Art. 12 (1) Book XII)

    • The word "advertising" is only required if the advertising nature is not immediately clear at the first receipt and at the first sight; the advertisement must therefore contain the word "advertisement" only if it cannot be distinguished as such from its reception. In principle, therefore, it is not mandatory systematically to include "advertising"

    • Assessment should be made on a case-by-case basis according to the circumstances of the case (the text indicates "given its overall effect and including its presentation"). For example, many banners are generally identifiable as such because they adopt a specific design that clearly stands out from the rest of the site content, and therefore it should not contain "advertisement"

    • On the other hand, the more the advertising banner adopts a similar design to the non-advertising site, the less likely it will be considered identifiable as advertising. It is up to each advertiser to take responsibility when designing such a banner to make it stand out as much as possible from purely informative messages, if the inclusion of ‘advertising’ is to be avoided (Q. 16; Point 1: FPS Economy Q&A)

  • The natural or legal person on whose behalf the advertising is made shall be clearly identifiable, either in the advertising itself or by means of hyperlinks (Art. 12 (2) Book XII and Q. 16, Point 2 FPS Economy Q&A)

 

 

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8. Telemarketing

 

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

SECTION C: DIRECT POSTAL MAIL

 

 

OVERVIEW

 

Privacy issues should be reviewed with specialist advisors

 

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

 

 

APPLICABLE LEGISLATION AND SELF-REGULATION

 

 

1. Self-Regulation

 

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

 

 

2. Legislation

 

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

 

 

1.1. KEY SELF-REGULATORY PROVISIONS

 

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

 

 

Article C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

 

Article C2. Identity of the marketer

 

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

Article C8.  Respecting consumer wishes

 

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

 

 

2.1. KEY PROVISIONS FROM LEGISLATION 

 

2.1.1. Invitation to purchase

 

Article 99, Book VI Code of Economic Law (EN)

 

§ 4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

 

  1. The main characteristics of the product, to an extent appropriate to the medium and the product
  2. The geographical address and the identity of the business, and, where applicable, the geographical address and the identity of the business on whose behalf it is acting
  3. The price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. The arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence; 5. where appropriate, the existence of a right of withdrawal or cancellation

 

 

2.1.2. B2C: Opt-out

 

  • Individual subscribers can opt-out from direct mail advertising using:

 

  • The Robinson List/ Mail Preference Service which allows all ‘natural persons’ i.e. individuals/ consumers, to register their details for free, for an indefinite period of time, to indicate that they do not wish to receive unsolicited addressed postal mail for direct marketing purposes referenced by Art. 110 Code of Economic Law
  • If applicable according to specialist advice, their right to object to processing for direct marketing purposes under the GDPR (Art. 21.3; key articles here)

 

 

Key points of Robinson list

 

  • It does NOT cover or apply to (CPP Recom):

 

  • Unaddressed mail such as that to 'The Occupier' or door-to-door advertising (mail drops); so applies only to addressed mail
  • Promotional mail sent to an individual in the context of and at the address of their professional role (i.e. B2B); only ‘natural persons’ can register, not companies
  • Addressed promotional mail to a party’s own customers or individuals who, after their inclusion in the Robinson list, expressed the desire to receive such mail

 

 

 

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10. Event Sponsorship/ Field Marketing

SECTION C: EVENTS/ SPONSORSHIP

 

 

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

 B1  PRINCIPLES GOVERNING SPONSORSHIP

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

 B2  AUTONOMY AND SELF-DETERMINATION

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

 B3   IMITATION AND CONFUSION

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

 B4   'AMBUSHING' OF SPONSORED PROPERTIES

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

 B5  RESPECT FOR THE SPONSORSHIP PROPERTY AND THE SPONSOR

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

 B6   THE SPONSORSHIP AUDIENCE

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

 B7  DATA CAPTURE/ DATA SHARING

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

 

 

 B8  ARTISTIC AND HISTORICAL OBJECTS

 
  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship which aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
 
 

 B9  SOCIAL AND ENVIRONMENTAL SPONSORSHIP

 
  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development (available from www.iccwbo.org)
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in chapter D, Environmental Claims in Marketing Communications
 
 

 B10  CHARITIES AND HUMANITARIAN SPONSORSHIP

 
  • Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected
 
 

 B11  MULTIPLE SPONSORSHIP

 
  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity. In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship
  • The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors
 
 

 B12  MEDIA SPONSORSHIP

 
  • The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
  • Sponsored media properties should be identified as such by presentation of the sponsor’s name and/ or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
  • Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved
 
 

B13  RESPONSIBILITY

 
  • As sponsorship is conceptually based on a contract of mutual benefit, the onus for observing the Code falls jointly on the sponsor and the sponsored party, who share the ultimate responsibility for all aspects of the sponsorship, whatever its kind or content
  • Anyone taking part in the planning, creation or execution of any sponsorship has a degree of responsibility, as defined in article 23 of the General Provisions, for ensuring the observance of the Code towards those affected, or likely to be affected, by the sponsorship

 

 

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The European Sponsorship Association (ESA) may also be able to help/ inform

 

 

 

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11. Sales Promotion

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

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

 

 

SELF-REGULATION

 

From the ICC Advertising and Marketing Communications Code, Chapter A

 

 

Extracts from the code

 

 

A2 Terms of the offer 

 

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

 

 

 A3 Presentation

 

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

A4 Administration of promotions 

 

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

 

In particular:

 

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

 

 

A5 Safety and suitability

 

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

 

 

A6 Presentation to consumers

 

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

 

 

INFORMATION REQUIREMENTS

 

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

 

Information should include, where relevant:

 

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

 

 

Information in prize promotions 

 

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

 

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

 

 

LEGISLATION

 

  • Act of 7 May 1999 on games of chance, betting, gaming establishments and the protection of players, referred to as 'Gaming Act' hereafter EN (translation from Gaming Commission)
  • Lotteries Act of 31 December 1851 FR - NL
  • Penal/ Criminal Code; Articles 301 to 304 of the Criminal Code determine the cases in which the organisation of lotteries and related activities are infringements FR - NL
  • Royal Decree of 9 February 2011 establishing the Code of Ethics for telecommunications FR - NL / EN key provisions. Chapter 10, S. 4 Articles 57–71 re premium rate services 
  • Book VI of Code of Economic Law FR - NL Extracts EN. Title IV Prohibited practices: Art 100 (19) and Art. 103 (8) for some competition requirements/ prohibitions. Key clauses shown below 
  • Book XII of Code of Economic Law FR - NL. Extracts EN. Art. 12 points 3 & 4 re promotional offers and conditions; clauses shown below 
 

 

Commercial practices regarded as unfair in all circumstances

 

Misleading commercial practices

 

  • Bait advertising: making an invitation to purchase: Definition means 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 (Art. 1.8 (23) Book I ELC) products at a specified price without disclosing the existence of any reasonable grounds the business may have for believing that it will not be able to offer for supply or to procure another business to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (Art. 100 (5) Book VI ELC)
  • Bait and switch: making an invitation to purchase products at a specified price and then, with the intention of promoting a different product:

     
    • Either refusing to show the consumer the product proposed
    • Or refusing to take orders for it or deliver it within a reasonable time
    • Or demonstrating a defective sample of it (Art. 100 (6) Book VI CEL)

       
  • Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
  • Claiming that products are able to facilitate winning in games of chance 
  • Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions 
  • Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
  • Describing a product as 'gratis' (gratuity / gratis), 'free' (à titre gracieux / voor niets), 'without charge' (sans frais / kosteloos) or similar if the consumer has to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item 
    (All above from art. 100 CEL)

 

 

Aggressive commercial practices

 

  • Creating the false impression that the consumer has already won, or will win, whether or not by accomplishing a formality, a prize or other equivalent benefit
     
    • When in fact either there is no prize or other equivalent benefit
    • Or accomplishing any formality in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost (Art. 103 (8) Book VI CEL)
 
 

Online advertising for promotional offers and promotional competitions

 

  • Advertising which is part of or constitutes an information society service shall comply with the following conditions (Art. 12 Book XII):
     
    • Promotional offers and promotional competitions/ games should be clearly identifiable as such, and their conditions should be easily accessible and presented in a clear and unambiguous manner (Art. 12 (3/4) Book XII)
    • The explanatory memorandum states "such a requirement will be easily met by the hyperlinked reference to a webpage containing such information, the rules of the game, a participation form, etc." (Q. 16, Points 3/4 FPS Economy: Spamming Q&A)

 

 

Prize draws

 

Promotions in which the winner is chosen on the basis on an element of chance (promotional games of chance)

 

  • Such promotions are permitted unless they constitute a “game of chance”, which are only permitted subject to a licence, or a “lottery”, which is prohibited under Article 1 Lotteries Act, subject to exceptions shown below
  • This is a complicated area: both 'games of chance' and 'lotteries' are defined so broadly that promotional games of chance in Belgium are regarded as prohibited

 

 

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Read more

D. Advice & Clearance

SECTION D SRO SERVICES

 

 
COPY ADVICE 

 

Copy advice is available in the early stages of advertising development, on the basis of a script and/ or storyboard, or for the finished advertisement. An online copy advice request form is available on JEP’s website.

 

 

Fee

 

  • Advice provided by the SRO Secretariat:
     
    • Members of the Belgian Advertising Council 150€ + VAT
    • Non-members of the Belgian Advertising Council 300€ + VAT
       
  • Advice provided by the SRO Jury:
     
    • Members of the Belgian Advertising Council 250€ + VAT
    • Non-members of the Belgian Advertising Council 500€ + VAT

 

 

COMPLAINTS HANDLING 

 

  • JEP handles complaints from the public i.e. consumers, consumer organisations, public authorities and professional associations
  • Competitor complaints are not within JEP's remit
  • Fee: No charge
  • Complaints must be submitted via an online form or in writing
  • File a complaint in Dutch/ in French
  • View decisions in Dutch/ in French

 

 

CLEARANCE 

 

Must be made direct to Broadcaster 

TV and VOD

Allow 3-5 days 

For help contact the Traffic Bureau administration@trafficbureau.net

 

 

 

 

E. Links

SECTION E SOURCES

 

 

EUROPEAN LEGISLATION 

 

GDPR

 

Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018:

https://eur-lex.europa.eu/eli/reg/2016/679/oj

 

This is the FAQ from UBA, the advertiser organisation in Belgium:

https://www.ubabelgium.be/fr/news-insights/detail/2017/05/30/GDPR-Frequently-Asked-Questions

 

 

European Data Protection Authority

Article 29 Working Party/ EDPB





The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom.

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

Four more recent and significant documents:

 

 

 

Commercial practices: UCPD


Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

 

  1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
  2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
EU guidance:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS and video-sharing platforms in particular. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

 

E-privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

 

E-privacy Regulation draft (4 November 2020)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications)

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

 

E-commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

 

 

NATIONAL LEGISLATION 

 

Channel legislation

 

The Decree on audiovisual media services and video sharing services of 4 February 2021 transposes amends made to the AVMS Directive by Directive 2018/1808.  The content rules from the Directive do not change significantly (it is primarily scope that is extended), albeit more generally there are new pressures on Self-Regulatory systems; key changes to Content rules in the Directive are shown here - see article 4a and 9 for references to Self-Regulation in Food and in Alcohol. The 2021 Decree ‘is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch- or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish-, French- and German-speaking Communities.’ (from a helpful blog on the subject from lawyers Baker McKenzie). Commercial communication content rules are shown under Book II, Titles III and IV and Book V, Title II. Book V also carries the rules for Video-sharing platform services (VSPS) which include the requirement that commercial communications, where these are known to exist, must be identified by the user who uploads and by the service to the end user. FR:

https://www.csa.be/wp-content/uploads/2021/03/Nouveau-decret-SMA-du-4-fevrier-2021-Publication-au-MB.pdf

 

 

Belgium’s AV regulatory set-up is relatively complex; media is a cultural matter and therefore under the supervision of authorities in individual French, Dutch or German-speaking regions. Links to the authorities and some of their regulations below

 

 

Flemish community

Authority  Vlaamse Regulator voor de Media (VRM)

 

Decree of 27th March 2009 on radio and television broadcasting (Decreet betreffende radio-omroep en televisie); regulates commercial communications including advertising, teleshopping, sponsorship, and product placement in all Dutch-speaking radio and TV channels; applicable to those broadcasters established either in the Flemish speaking region or the bilingual Brussels-Capital region, where those activities are exclusively linked to the Flemish Community i.e. in Dutch. The Decree applies to commercial broadcasters and in part also to the Flemish public broadcaster VRT and to video-sharing platforms (article 176 +) following 2021 amends. Consolidated version updated to April 29, 2021 here (Dutch). Unofficial translation of the act from VRM updated 04.03.2021; does not include April 2021 amends transposing Directive 2018/1808:

https://www.vlaamseregulatormedia.be/sites/default/files/act_on_radio_and_television_broadcasting_040321.pdf

 

 

French community

Authority: Conseil Supérieur de l’Audiovisuel de la Fédération Wallonie-Bruxelles

 

Coordinated Decree on audiovisual media services. Version of 21 August 2018. Regulates commercial communications for all French-speaking radio and TV channels: TV/ Radio advertising, interactive, split screen and virtual advertising, sponsorship, teleshopping and self-promotion, and product placement. The provisions apply to commercial and public (RTBF) broadcasters, although the RTBF management contract supplements this Decree with more aggressive rules (see below). Consolidated text: 

https://www.csa.be/document/decret-coordonne-sur-les-services-de-medias-audiovisuels-version-consolidee-par-le-csa-au-21-aout-2018/ 

English translation of key provisions (previous decree of July 2016):

http://www.g-regs.com/downloads/BE_CSADecree_EN.pdf

 

CSA Recommendation on product placement (17/12/2009). Stipulates four explicit conditions on product placement and offers a mechanism for identifying programmes which contain product placement, i.e. PP logo and following phrase: “le programme qui suit contient des placements commerciaux de produits, marques ou servicesFR

CSA Code of ethics on audiovisual advertising directed at children FR (Art.11/12)

Alcohol advertising in the French community (2007) FR

 

Public Service Broadcaster: Radio Télévision Belge Francophone (RTBF)

https://www.rtbf.be/


RTBF management contract 2019-2022. The management contract with the Government of the Federation Wallonia-Brussels (French speaking Community) includes a chapter (IV) with measures on commercial communication, such as conditions for product placement, the prohibition of advertising and sponsorship of children's programmes on TV, Radio and VOD. This latest contract includes a requirement under article 73 that commercial communications for ‘drinks with added sugar, salt, or artificial sweeteners or processed food (boissons avec ajouts de sucres, de sel, ou d’édulcorants de synthèse ou de produits alimentaires manufacturés) must carry sequentially and equally ‘health messages’ as follows:

 

Pour votre santé, mangez au moins cinq fruits et légumes par jour
Pour votre santé, pratiquez une activité physique régulière
Pour votre santé, évitez de manger trop gras, trop sucré, trop salé
Pour votre santé, évitez de grignoter entre le repas

 

Consolidated version:

https://www.csa.be/wp-content/uploads/documents-csa/contrat_de_gestion_RTBF.pdf

 

 

German community

Authority: http://www.medienrat.be/

 

The Decree on media services and cinema screenings March 1, 2021 (Media Decree 2021). Transposes the amends from the AVMS Directive 2018/1808. Article 32 under Chapter 4 for new rules for video-sharing platforms, article 12 for the ‘standard’ rules re identification, the environment etc., article 17 for the protection of minors and articles 19 and 20 for product placement and sponsorship. 

http://medienrat.be/files/Mediendekret 2021-BS-120421.pdf (DE)

 

 

Bilingual Brussels-Capital region

Authority: 

 

Belgian Institute for Postal Services and Telecommunications BIPT. In Belgium, the Communities are competent for the technical aspects and the contents of the audiovisual media services. However, in the bilingual Brussels-Capital Region, some activities of the media sector cannot be exclusively linked to one of the two Communities (the Flemish Community and the French Community): in that case, the Federal State is competent for these activities. In this context, BIPT, as a federal institution, acts as the regulator in the sector of audiovisual media services in the territory of the bilingual Brussels-Capital Region. 

 

Federal Broadcasting Act: Act of 5 May 2017 regarding audiovisual media services in the bilingual Brussels-Capital Region. Regulates broadcasting activities in the bilingual Brussels region that cannot be linked exclusively to the French Community or the Flemish Community. At Federal level, BIPT (Belgian Institute for Postal Services and Telecommunications) is the national regulatory authority. Relevant Section Chapter 2 Section 1: Arts. 14-16 provisions applicable to all AVMS providers; Section 2: Arts. 22-25 specific provisions for TV broadcasters. This is the latest region-specific act as far as we are aware; it is our understanding that the applicable rules will now be from the Decree on audiovisual media services and video sharing services of 4 February 2021 (FR) referenced above 

FR: http://www.ejustice.just.fgov.be/eli/loi/2017/05/05/2017040323/justel

NL: http://www.ejustice.just.fgov.be/eli/wet/2017/05/05/2017040323/justel

English translation of relevant provisions:

http://www.g-regs.com/downloads/BE_BrusselsCapital_AVMS_EN.pdf

 

 

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

 

 

Privacy and electronic communications: cookies

 

Law of 13 June 2005 on Electronic Communications, as amended by Law of 10th July 2012 (Wet betreffende de elektronische communicatie/ loi relative au communications électronique). Entry into force 30/06/2005. This Act implemented the EU 'Telecoms Package', the regulatory framework for electronic communications consisting of five Directives; see here. The law imposes privacy and data protection obligations in electronic communications; in particular article 129 regulates the use of cookies, implementing article 5 (3) of the E-Privacy Directive 2002/58/EC as amended by Directive 2009/136/EC, the ‘Cookie Directive’. Cookies can only be stored or accessed on individuals’ computers provided that the individuals have consented after having been informed about the purposes of the data processing and their respective rights.  Consent is not required for cookies that are used for the sole purpose of transmitting a communication over a network, or strictly necessary for the provision of a service requested by the user; the GDPR may (also) apply in the context of processing personal data. Consolidated act:

FR:  http://www.ejustice.just.fgov.be/eli/loi/2005/06/13/2005011238/justel

NL: http://www.ejustice.just.fgov.be/eli/wet/2005/06/13/2005011238/justel

 

Data Protection

 

Law of 8 December 1992 on the protection of privacy in relation to the processing of personal data. Known as the Data Protection Act (DPA) or ‘Privacy Act’, implemented the Data Protection Directive 95/46/EC (now repealed) following an amendment via the Act of 11 December 1998. The Act will apply to most marketing activities (including electronic) where there is likely to be processing and use of personal data. Whilst the Act does not prohibit the use of personal data for the purposes of direct marketing, it provides individuals with the right to object to the processing of their personal data for direct marketing purposes (Arts 9 (c) and 12(1) DPA). Consolidated Law:

FR:

http://www.ejustice.just.fgov.be/eli/loi/1992/12/08/1993009167/justel

NL:

http://www.ejustice.just.fgov.be/eli/wet/1992/12/08/1993009167/justel

Unofficial translation as of July 2013: 

http://www.gregsregs.com/downloads/BE_PrivacyAct_08.12.1992_EN.pdf

Summary:

http://www.gregsregs.com/downloads/BE_DataProcessingSummary.pdf

 

REPEALED JULY 2018

 

 

The arrival of GDPR

 

The Law of 3rd Dec 2017 replaced/ renamed the Privacy Commission with the Data Protection Authority (DPA); which will have the necessary powers to enforce the GDPR and be able to impose a wide range of sanctions (Article 100, Law of 03/12/2017)

https://www.gegevensbeschermingsautoriteit.be/sites/privacycommission/files/documents/Loi 3 DECEMBRE 2017.pdf

The Law of 30 July 2018 on the protection of individuals with regard to the processing of personal data ‘implements’ the GDPR and its open provisions, e.g. those to do with national public authorities’ data:

www.ejustice.just.fgov.be/eli/loi/2018/07/30/2018040581/justel

 

 

Authority and guidance 

 

The Data Protection Authority.  Autorité de protection des données, Gegevensbeschermingsautoriteit. Established by the Law of 3rd December 2017

https://www.dataprotectionauthority.be/professional

Recommandation No 01/2020 du 17 janvier 2020 relative aux traitements de données à caractère personnel à des fins de marketing direct. Recommendation No 01/2020 of 17 January 2020 on the processing of personal data for direct marketing purposes. From Para 93 Profiling. Consent from Para 175. The Recommendation is GDPR and EDPB consistent:

 

 

Electronic communications: E-commerce and opt-in

 

Book XII of Code of Economic Law: 'Law of the electronic economy'. Entry into force 31/05/2014. (Boek XII: Recht van de elektronische economie / Livre XII: Droit de l'économie électronique). Book XII codifies and in doing so repeals the Law of 11 March 2003 on certain legal aspects of the information society, which implemented the E-Commerce Directive 2000/31/EC, and also part-implemented the E-Privacy Directive 2002/58/EC (Art. 13 (1) and (4) of Book XII). Book XII requires ‘easy, permanent and direct’ access to some service provider information, and specifies identifiability of Information Society Service advertising and e.g. conditions for promotional offers. It also establishes an opt-in regime where unsolicited emails may be sent only with prior, free, specific and informed consent of the recipient (Art. 13, Book XII). The exception to this prohibition (soft opt-in) is set out in Royal Decree of 4th April 2003;  see below. Relevant section Chapter 4 Advertising; articles 12-15. The provisions apply to both natural and legal persons i.e. B2C and B2B. Book XII:

http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0410 (FR)

http://www.ejustice.just.fgov.be/eli/wet/2013/02/28/2013A11134/justel#LNK0409 (NL)

http://www.g-regs.com/downloads/BEEconomicCodeBookXII_WRedit.pdf (EN)

 

 

Electronic communications: Soft opt-in

 

Royal Decree of 4th April 2003 regulating the sending of electronic commercial communications. Entry into force 28/05/2003. (Koninklijk besluit tot reglementering van het verzenden van reclame per elektronische post/ Arrêté royal visant à réglementer l'envoi de publicités par courrier électronique). The decree complements the provisions on e-mail advertising in Chapter 4 (Articles 13 and 14) of Book VI Economic Law Code, implementing Article 13 (2) from the E-Privacy Directive. The decree establishes two exceptions to the opt-in principle established in Article 13 (1) of Book VI Economic Law Code. Prior consent is not required from existing customers where certain conditions are met nor from legal persons (businesses) where the electronic contact details are of an impersonal nature (e.g. info@...). The Decree also clarifies the way in which marketers must respect the right of the recipient to opt out, requiring them to maintain and update opt-out lists/ registers. A legal commentary on Articles 1 and 2 of the Decree is also provided. Translation of articles 1 and 2, in addition to legal commentary is here: 

http://www.g-regs.com/downloads/BE_RD_4thApril2003_emailadvertising_commentary.pdf

Royal Decree:

FR: http://www.ejustice.just.fgov.be/eli/arrete/2003/04/04/2003011238/justel

NL: http://www.ejustice.just.fgov.be/eli/besluit/2003/04/04/2003011238/justel

 

 

Guidance relevant to privacy/ direct marketing

 

Federal Public Service: Economy, SMEs, Self-employed and Energy (abbrev. FPS Economy – as above). Monitors goods and services market in Belgium; responsible for contributing to the development, competitiveness and sustainability of the goods and services market, ensuring the position of the Belgian economy at the international level, promoting trade by fair economic relations in a competitive market, collecting, processing and disseminating economic information. It is the supervisory authority for the Code on Economic Law.

http://economie.fgov.be/en

 

 

FPS Economy brochure

 

Spamming FAQ. Q&A brochure presenting the rules applicable to unsolicited commercial communications by e-mail:

https://economie.fgov.be/fr/themes/line/commerce-electronique/spam/questions-frequemment-posees

 

 

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

 

 

Consumer protection: unfair commercial practices 

 

Book VI of the Economic Law Code: 'Market Practices and Consumer Protection' (Boek VI: Marktpraktijken en consumentenbescherming/ Livre VI: Pratiques du marché et protection du consommateur) Entry into force 31/05/2014. Implements amongst others Directive 2006/114/EC on misleading and comparative advertising, the Unfair Commercial Practices Directive 2005/29/EC (UCPD) and E-Privacy Directive 2002/58/EC. In the context of UCPD, Articles 104-109 regulate some practices between businesses and Articles 92-103 regulate unfair consumer commercial practices ​including those that are regarded as misleading or aggressive in all circumstances, aka the Blacklist. Article 13 of the E-Privacy Directive is part-transposed in Chapter 3 (Arts. 110-115) of Book VI, which regulates the sending of unsolicited commercial communications, excluding those via e-mail which are provided for in Book XII and the Royal Decree 4th April 2003. Applies to B2C and B2B. Consolidated text:

FR: http://www.ejustice.just.fgov.be/eli/loi/2013/02/28/2013A11134/justel#LNK0092

NL: http://www.ejustice.just.fgov.be/eli/wet/2013/02/28/2013A11134/justel

Extracts in English: 

http://www.g-regs.com/downloads/BEEconomicCodeBookVIwithArt17_WRedit.pdf

 

 

 

SELF-REGULATION

 

ICC

 

ICC Advertising and Marketing Communications Code 2018:

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf (EN)

https://cdn.iccwbo.org/content/uploads/sites/3/2019/04/icc-advertising-marketing-code-dutch.pdf (NL)

https://cdn.iccwbo.org/content/uploads/sites/3/2018/12/icc-publicite-et-marketing-code-de-communications.pdf (FR)

 

Chapter A.  Sales Promotion

Chapter B . Sponsorship

Chapter C.  Direct Marketing and Digital Marketing Communications

Chapter D.  Environmental Claims in Marketing Communications

 

Additional ICC guidance and frameworks

(non-exhaustive)

 

The ICC Framework for Responsible Environmental Marketing Communications 2021. 'The updated 2021 Environmental Framework provides added guidance on some established environmental claims and additional guidance on some emerging claims' and 'a summary of the principles of the ICC Code including those outlined in Chapter D on environmental claims and supplements them with additional commentary and guidance to aid practitioners in applying the principles to environmental advertising.' Appendix I carries an Environmental Claims Checklist 'that marketers may find useful in evaluating their environmental claims.' 

http://www.g-regs.com/downloads/iccenvironmentalframework_2021.pdf

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising: It’s a ‘Resource Guide’, rather than rules per se, showing: explanation of global framework available for OBA self-regulation, checklist from existing OBA self-regulatory mechanisms on how to implement the global principles and links to further resources. The ICC's OBA rules are under C22 of their General Code; we have extracted the rules here

https://cdn.iccwbo.org/content/uploads/sites/3/2012/11/ICC-Resource-Guide-for-Self-Regulation-of-Online-Behavioural-Advertising-1.pdf

Mobile Supplement to the ICC Resource Guide for Self-Regulation of Interest-based Advertising

https://cdn.iccwbo.org/content/uploads/sites/3/2018/07/icc-mobile-supplement-to-iba-guidance.pdf

ICC Guide for Responsible Mobile Marketing Communications

https://cdn.iccwbo.org/content/uploads/sites/3/2018/08/icc-guide-for-responsible-mobile-marketing-communications.pdf

 

 

Other codes administered by JEP

 

The Code of Environmental Advertising 1998. Articles 1 to 14 (Code de la publicité écologique / Milieureclamecode). This code is from the Commission for Environmental Labelling and Advertising, which sat within the Consumer Affairs Council, the main advisory body on the issues of consumption and consumer protection. The Consumer Affairs Council delivers its advice to the Ministry of Consumer Protection and the Economy Ministry, and has legislative and executive powers on consumer issues. The code replaced an Environmental Code produced by JEP, the SRO for Belgium and is based on the ICC code applicable at the time. It now supplements the more recent Chapter E Environmental claims, of the ICC Code. The Code is administered by JEP.

FR - NL / EN

 

People and humour

 

  • Rules on the depiction of people: FR / NL / EN
  • Rules on humour in advertising: FR / NL / EN

 

JEP (Jury voor Ethische Praktijken inzake reclame (JEP)/ Jury d’Ethique Publicitaire). Jury of Advertising Standards – also translated as Jury for Ethical Practices in Advertising or Advertising Ethics Jury - JEP is the Self-Regulatory Organisation (SRO) for the advertising sector in Belgium and was created in 1974 by the Belgian Advertising Council (Raad voor de Reclame / Conseil de la Publicité, as of June 2020 Centre de la Communication). JEP’s mission is “to ensure fair, truthful, and socially responsible advertising.” The Jury composition is equally split between the advertising sector and civil society. JEP handles complaints from consumers, consumer organisations, public authorities and professional associations; competitor complaints are not within their remit, which is is determined by the Jury Regulations, and not by the legal and SR definitions of concepts such as ‘advertising’, ‘marcom’, ‘commercial communication’, etc. JEP’s areas of competence are translated here, see relevant case here.

http://www.jep.be/

 

Native

 

Code on Native Advertising and Related Commercial Communications. Code en matière d’identification des publicités natives et communications commerciales connexes. Published in January 2019, this code sets out what constitutes native advertising, provides the context of the ICC rules, and lists acceptable 'Identifiers'

 

 

Online influencer marketing 

 

Published October 2018 by the Advertising Council, sets out the rules/ guidance on the issue of Online Influencer Marketing: when commercial communications qualify as such and what kinds of identification are required:

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

http://www.g-regs.com/downloads/BEGenInfluencerRecos.pdf (EN)

 

 

 

INDUSTRY ASSOCIATIONS

 

 

UBA

 

The United Brands Association, formerly the Union Belge des Annonceurs, the Association of Belgian Advertisers. The UBA Unstereotype Communication Charter has some influence:

www.mediaspecs.be/wp-content/uploads/2019/01/UBA-Charter-Unstereotype-Communication-FR-.pdf (FR)

www.g-regs.com/downloads/BEGenUBAStereotypeCharter.pdf (EN key clauses)

 

 

 

EASA

 

European Advertising Standards Alliance. ‘EASA has a network of 41 organisations representing 27 advertising standards bodies (aka Self-Regulatory Organisations) from Europe, and 14 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising Self-Regulatory systems, as set out in the Best Practice Model and EASA's Charter.’

http://www.easa-alliance.org/

Membership

http://www.easa-alliance.org/members

 

Best Practice Recommendations

 

Digital Marketing Communications:

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

Online Behavioural Advertising:

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Online%20Behavioural%20Advertising_0.pdf

Influencer Marketing

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

 BAM

 

The Belgian Association of Marketing; from their website: 'the largest marketing trade association in Belgium. BAM is an open community that brings the members, initiatives and expertise of STIMA, BDMA and IAB Belgium together into one place to provide a unique knowledge exchange platform.'

https://www.marketing.be/home

 

 

IAB Europe

 

How to Comply with EU Rules Applicable to Online Native Advertising
IAB Transparency and Consent Framework:

 

 

WFA

 

World Federation of Advertisers (WFA) Guide for Marketers: Five things every brand owner should know about the General Data Protection Regulation: 

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

 

 

ESA

 

European Sponsorship Association: from their website:ESA’s mission is to inspire, unite and grow the sponsorship industry for the benefit of its members. ESA does this through education, guidance, representation, the recognition of excellence and the sharing of best practice and performance.’

https://sponsorship.org/

 

 

 

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