Dutch Media Authority issues first fine to influencer over recognisability of ads

The Dutch media watchdog recently imposed the fine on a TikTok influencer for uploading videos containing advertisements without recognisably indicating that they did so. Since July 2022, the scope of the Dutch Media Act was extended, so video platforms and influencers with more than 500,000 followers must also comply with the regime. They must comply with rules on sponsorship, advertising and product placement. One of the requirements is that that advertisements must be recognisable as such.

Nienke Kingma, an Amsterdam-based legal expert of Pinsent Masons, said: “Until so far the Dutch authority has been mainly focussing on informing influencers on the regime, by way of general information campaigns or even actively approaching the influencers that fell under their supervision. In 2023, the authority concluded that many influencers did not yet comply with the law. Back then the authority indicated that it will enforce the laws more strictly, which has now resulted in the first fine.”

The decision published by the Dutch authority has made it clear that social media influencers or video uploaders must ensure advertising in their videos is recognisable clearly as such and, more importantly, it has clarified the ways in which ads can be “sufficiently” recognisable.

The influencer fined in this case breached the ad recognisability rules even though in some of the videos investigated by the authority the mention of ‘ad’ was included in the descriptions accompanying the videos. The regulator clarified that for recognisability it is always important that the mention is clearly visible or audible.

“In the default display of the video via a smartphone…the mention ‘ad’ in the description only becomes visible if ‘more’ is clicked on,” said the Dutch Media Authority in its decision. It concluded that this does not lead to the advertisement being recognisable as such, because it cannot be expected that every viewer views the entire description under a video.

“If a video contains advertising, this must be mentioned in a way that is clearly visible or audible in the standard display of a video,” it said.

According to the Dutch Media Authority’s Advertising Policy Rules, advertising in a video is considered recognisable if there is visible or audible mention of the terms 'advertising', 'advertisement', 'paid promotion', 'paid collaboration' or 'paid partnership' included in the video. This can be at the beginning of the video, at the time the recommendation is made or throughout the video, and if at the same time the mention is included in the description accompanying the video.

The Dutch authority’s decision also highlighted the fact that influencers cannot use the excuse of a “barter deal” for non-compliance with this requirement.

The influencer in this case had argued that one of the videos that breached the rules involved a barter deal in which she received no money for the product, and that she was not aware that barter deals qualify as advertising. However, the authority decided that, in this case, the influencer obtained an advantage consisting of receiving a product and agreed with the advertiser to make a video to promote its product. In such agreements, the authority “considers the video to be advertising and that advertising must be recognisable as such”.

The authority issued an administrative fine of €6,075, having considered circumstances that can lead to adjustment of the administrative fine upwards or downwards. According to the authority, the fact that the violator took measures after the violation to prevent repetition of violations can be considered as a penalty-reducing circumstance.