Advertising Code for Social Media & Influencer Marketing (RSM) 2019
The background of and a comment on the creation of this Code is included in the annex to this Code.
The Advertising Code for Social Media & Influencer Marketing (“the Code”) pertains to Advertising through Social Media (including Influencer Marketing).
In this Code, the following definitions apply:
a. Advertising through Social Media: advertising within the meaning of Article 1 of the Dutch Advertising Code in connection with Social Media & Influencer Marketing.
b. Advertiser: the party encouraging the Distributor to create and/or publish Advertising through Social Media and/or the party that advertises by placing ads on social media and/or by (causing the) modification of communications on social media.
c. Distributor: the party that has a Relevant Relationship with the Advertiser and that distributes Advertising through Social Media. A Distributor may be a natural person or legal entity. Distributor is understood not to include an operator of social network sites and forums that facilitates communication between participants and that takes a neutral stand regarding content.
d. Relevant Relationship: the relationship between the Advertiser and the Distributor directed at (causing the) distribution of Advertising through Social Media, in return for payment or any benefit, that might affect the credibility of Advertising through Social Media.
e. Social Media & Influencer Marketing: a marketing activity by an Advertiser that is directed at causing Distributors to communicate about a product or brand, whether or not on the direct instructions of the Advertiser, and at (causing the) modification of third-party communications via social media on behalf of an Advertiser.
For example, bloggers, vloggers and/or online content creators can be considered as Distributors.
3. Disclosure and Recognisability of a Relevant Relationship
a. Advertising through Social Media must be clearly recognisable as such.
b. If a Distributor receives compensation in money or in kind from the Advertiser, this must be explicitly stated in the advertising message.
c. The requirements referred to in a. and b. can be met in any event, if the content and nature of the Relevant Relationship is disclosed clearly and in an easily accessible manner, e.g. by means of layout and/or presentation. Content and nature of the Relevant Relationship are in any event clearly recognisable, if set up in accordance with the suggestions in the comment to this article.
If an Advertiser offers the Distributor (a chance of) any benefit (e.g. by granting a discount, free products or services or making a payment) for the distribution of Advertising through Social Media and such benefit affects the credibility of the communication in question, the relationship between Advertiser and Distributor must be clear. Whether this is sufficiently clear, is subject to the context and the platform used.
If it concerns advertising targeted at children, regard must be had of the comprehension of children as laid down in the Code for advertising directed at children and young people.
Below are several examples of the manner in which the Relevant Relationship can be communicated to visitors on various platforms. The list of examples and platforms is not exhaustive. Other manners are possible, if they make it clear that it concerns advertising. See for more examples and guidelines www.reclamecode.nl/social.
I. Advertising distributed through video sharing platforms (e.g. YouTube and Instagram TV (IGTV):
Through text in the video and/or in the description below the video which is visible without having to click on a button such as “read more” and (as far as technically possible) visible on all kinds of devices and platforms where the video can be viewed
through a spoken message in the video, e.g.:
· “This video comprises advertising for [advertiser]”
· “This video comprises paid collaboration with [advertiser]”
· “[Advertiser] paid me for making this video”
· “I received these products as a gift from [advertiser]”
· “Thanks to [advertiser] for sending me the products”
· “This video is made possible by [advertiser]”
II. Advertising distributed through photo/message sharing platforms (e.g. Instagram, Facebook, Twitter):
through hashtags in or below the photo/message, e.g.:
through text in the description below the photo/message, e.g.:
· “Collaboration with @[advertiser]
· “Made possible by @[advertiser]”
· “Received as gift from @[advertiser]”
III. Advertising distributed through a podcast platform:
A notice in the description of the podcast and/or in the podcast itself, e.g.:
· “This podcast comprises advertising for [advertiser]”
· “This podcast comprises a paid collaboration with [advertiser]”
· “[Advertiser] paid me for making this podcast”
· “I received the products (I discuss in my podcast) as a gift from [advertiser]”
· “This podcast is made possible by [advertiser]”
IV. Advertising distributed through platforms where content is only visible for a brief time (such as Snapchat and Instagram Stories):
Through hashtags in the posted content (in case of a series of messages in any case in the content first and last posted which is visible during the full period in which the content is available), e.g.:
through text in the posted content which is visible during the full period in which the content is available, e.g.:
· “Collaboration with @[advertiser]
· “Made possible by @[advertiser]”
· “Received as gift from @[advertiser]”
V. If the advertising is distributed through social media platforms where (live) streaming services are provided, notices can be made through a hashtag, text and spoken messages, as described above, if this makes it sufficiently clear that it concerns a Relevant Relationship. Furthermore, it is important that the Relevant Relationship is stated frequently in case of a stream which is so long that it is expected that viewers will switch on or off during the stream.
Next to, or instead of said examples one can also use a feature of a platform where the advertising is distributed, provided this makes it sufficiently clear that there is a Relevant Relationship (e.g. the function of Instagram by which the Distributor can mention an Advertiser in a post: “Paid partnership with [advertiser]”).
4. Ban on Manipulation
a. Modifying posts or other communications on social media in such manner that the average consumer may be misled is prohibited.
b. If the Advertiser modifies, or has another party modify, posts or other communications on social media in order to recommend a product, service or activity, either from the Advertiser or from a third party, the Advertiser must disclose this in a clear and accessible manner.
c. If posts or other communications on social media are modified, selected or compared within the context of recommending a product, either from the Advertiser or from a third party, the Advertiser must do everything necessary to clearly disclose the nature of the Relevant Relationship.
d. The Advertiser is furthermore prohibited from systematically creating and/or using false or non-existent identities in bulk to communicate about a product and/or service through social media.
When displaying content generated by consumers in a selective manner, as a result of which only positive communications are presented, the Advertiser is required to disclose this.
Example: When micro-blog posts are displayed on a(n owned) platform and the Advertiser publishes positive communications there, the Advertiser must clearly indicate this. For example by stating that it concerns a selection of positive reactions. Naturally, paragraph a. of this article continues to apply: such clarity does not necessarily mean that the result of the selection cannot be misleading.
Example: An advertiser opts to post or cause posts about a product or service using false or non-existent identities. In that case, the recipient is incorrectly informed about the Distributor’s identity and the Relevant Relationship with the Advertiser, which is prohibited.
The distinction between paragraphs b. and c. is that, in paragraph b., the Advertiser modifies posts himself whereas, in paragraph c. a third party modifies the posts. If the third party has a Relevant Relationship with the Advertiser, the third party must mention this. If the Advertiser discovers that the Relevant Relationship wrongfully is not mentioned, the Advertiser must point this out to the third party and ensure, as far as possible, that this relationship is mentioned as yet.
Please Note: Teasers are allowed unless the teaser might induce the average consumer to make a decision about a transaction that he would not have made otherwise.
It is not allowed to directly encourage children aged 12 or under to advertise for products or services on social media.
6. Due care / Advertiser’s responsibility towards the Distributor and third parties
1. The Advertiser is required:
a. to inform the Distributor of the contents of this Code;
b. to require the Distributor working on his instructions to comply with the relevant law and regulations, including the Dutch Advertising Code and this Code (for example by drawing up rules);
c. if the Distributor is permitted to use third parties: to draw the Distributor’s attention to the fact that such third parties must also comply with the obligations referred to in b.;
d. to actively endeavour to hold the Distributor to the obligations cited in b. and c. and to actively take measures against the violations cited to in b. and c.
2. The Advertiser cannot excuse himself from the obligations referred to in 1. based on the mere fact that the Distributor does not operate by his order.
3. If the Advertiser has complied with the obligations above, the Advertiser has made the best efforts that can be reasonably expected from him to ensure that the Distributors comply with the rules.
4. The Advertiser and Distributor each bear their own responsibility for compliance with Articles 3, 4 and 5 of this Code. When a complaint is acknowledged, the Advertising Code Committee and, on appeal, the Board of Appeal can designate the party to which non-compliance with this Code can be attributed.
7. Miscellaneous Provisions
The provisions of this Code do not prejudice the provisions of the Dutch Advertising Code, in particular the provisions about misleading advertising in Articles 7 and 8 of the Dutch Advertising Code and the recognisability of advertising referred to in Article 11.1 of the Dutch Advertising Code.
8. Evaluation and Entry into Force
a. This Code entered into force on 1 January 2014. As of 15 May 2019 the comment to Article 3 has been amended and Influencer Marketing has been added to the title of the code.
b. Each year after its entry into force, this Code will be evaluated and amended if necessary.
Annex to the Advertising Code for Social Media & Influencer Marketing (SMC) – Explanation
The SMC makes a start in regulating advertising and marketing activities by means of social media. This Code is intended to promote transparency in Social Media & Influencer Marketing by disclosing the relationship between the advertiser and the party distributing the advertising communication. Developments in this channel are still in flux, which is why this Code will be regularly evaluated and amended if necessary.
Characteristic of Social Media & Influencer Marketing is that the distribution of the advertising message is not performed by one or more parties instructed by an advertiser, but by distributors (consumers and legal entities), who have (sometimes but) usually not been directly instructed by the advertiser, but who have been induced to do so by the advertiser.
In order to enable the recipient (consumers and businesses) to correctly recognise an advertising message via Social Media & Influencer Marketing, he must, in a number of cases, be aware of the nature of the relationship between the advertiser and the distributor. The consumer does not need to be aware of relationships that do not affect credibility of the advertising message. In this Code, a relationship the consumer must be aware of is referred to as a Relevant Relationship. A double assessment is always made: there must be some benefit and that benefit must also affect the credibility of the relevant communication.
In any event, a Relevant Relationship exists when there is a contract, sponsoring or an offer of products free of charge to consumers accompanied by a request to post something about the free product. It is irrelevant, for example, whether the advertiser contacts a distributor to convince him or her to write a positive story about the advertiser. Sending reviewer’s copies is also irrelevant when sent to a reviewer. Nor will there be a Relevant Relationship with journalists doing their job in accordance with their journalistic codes. 1
Consumers may already be aware or deemed to be aware of a Relevant Relationship. If this is not the case, the relationship must be disclosed within the advertising message. Another requirement of a Relevant Relationship is that the distribution of the advertising message must lead to some benefit for the distributor, offered by the advertiser for distributing the advertising message. This may be material benefit (money or goods), but can also consist of additional “followers”, “friends” or publicity.
If a Relevant Relationship ensues from an agreement, the advertiser must require the distributor to comply with this Code, for example by including a provision in the contract, employment agreement or the terms and conditions of the promotion. If there is no agreement, the advertiser must explicitly draw the attention of distributors to this Code when inviting them to provide their opinion on his products. If a social media campaign generates not only recommendations, but critical communications as well, the advertiser is still accountable under this Code. The advertiser also bears responsibility when advertising messages are made in violation of this Code and the advertiser is able to remove these, for example because they are posted on his website or websites related to him.
Furthermore, the advertiser must ensure that the impression of a product or service created by blog posts is not misleading. Therefore, on his own media the advertiser must disclose every type of selection or modification of posts. Obviously, the advertiser may utilise posts elsewhere, apart from the forum on which they were posted, at his own discretion, evidently to the extent permitted under the Dutch Advertising Code. Its purpose is to avoid the suggestion of an open forum when this is not the case.
The SMC is part of the Dutch Advertising Code. If complaints are received, it is ultimately up to the Advertising Code Committee to determine in each case whether communications published through social media can be categorised as advertising for which the advertiser is responsible.
The provisions in this Code are in addition to the statutory provisions from the Dutch Civil Code, the Personal Data Protection Act and the Dutch Telecommunications Act and, as indicated, the Dutch Advertising Code’s self-regulation. The offline and online communication media’s own rules must also be respected as far as they are not contrary to the provisions of this Code and the Dutch Advertising Code. If they are, this Code and the Dutch Advertising Code prevail and the advertiser cannot escape his responsibilities under this Code and the Dutch Advertising Code by invoking such rules.
1 Under certain circumstances, advertising can also exist without a Relevant Relationship (cf. advertising for medicinal products).