Who: The Dutch Advertising Code Committee (the RCC), a Dutch vlogger/influencer (Influencer) and Hoeksche Hoeve
Where: The Netherlands
When: 20 December 2019
Law stated as at: 3 February 2019
The Influencer published a 26-minute video on his YouTube channel in which he visits Hoeksche Hoeve, a Dutch farm and producer of crisps (Boerderijchips). The video is not labelled as an advertisement, which resulted in a complaint with the RCC for failing to identify the video as a paid collaboration.
The production of the video was governed by an agreement between Hoeksche Hoeve and the Influencer, which detailed payment terms, the scope of the video and its platform as well as an agreement to include a link to the website of the crisps, in exchange for a remuneration.
Hoeksche Hoeve argued that the video is of an informative nature, and does not contain advertising or promotional communications. Hoeksche Hoeve also noted that the Influencer had complete creative freedom and that any payments made to the Influencer were meant to cover the expenses of the Influencer. To the extent that the video would be considered promotional, Hoeksche Hoeve assumed that the Influencer would meet the applicable transparency requirements.
The Influencer also argued that the video had an educational character and noted that Hoeksche Hoeve’s products were not displayed until 18 minutes into the video. In addition, the Influencer noted that the collaboration between the Influencer and Hoeksche Hoeve was clear from the nature of the video, and thus did not require any additional disclosures.
The RCC’s ruling
The RCC did not follow the arguments of Hoeksche Hoeve and Influencer and ruled that the video contains promotional images of the crisps with the purpose of bringing the crisps to the attention of the viewers. The RCC also ruled that the remuneration was directly related to promoting the crisps. Based on this analysis, the video should have been clearly identified as such, for example by using #ad or #spon in line with the Advertising Code Social Media & Influencer Marketing. Moreover, as the advertiser, Hoeksche Hoeve, has a duty of care towards the Influencer and should have informed the Influencer of the applicable advertising rules.
The RCC ruled that both parties are prohibited from advertising in this way in the future. In response to this ruling, the Influencer has updated the description, which now states that the video was made possible by Hoeksche Hoeve.
Why this matters:
This ruling contains a number of interesting takeaways.
Firstly, advertisers and influencers should be aware that even a short fragment of a longer video can qualify as the promotion of a product or service and fall within the scope of the Dutch Advertising Code.
Secondly, any collaboration between advertiser and the distributer of the content must be clearly visible to the consumer, for example by using #ad or #spon.
Lastly, the ruling acknowledges that advertisers have a duty of care to inform distributors of their obligations under the applicable laws and regulations. As a result, advertisers are jointly responsible for the publication of the advertisement.