Advertisement law
The "Code of Conduct Transparency Online Political Advertisements" is part of a broad scheme of advertisement rules and regulations. Advertisement law is encorporated in the Burgerlijk Wetboek (the Dutch Civil Code), which encompasses enforceable legislation against misleading advertising (in art. 6:194 through 6:196). In the article 6:193a and further, the Dutch legislator implemented EU-Directive 2005/29/EC on unfair business-to-consumer commercial practices.
Misleading advertisements are as such qualified as being unlawful. For example, misleading information about the reasons and purposes of the advertisement, the claims made and the identity of the advertiser may be judged misleading. Also the omitting of essential information is misleading.
Dutch Advertising Code
In the Netherlands, advertisers also need to take into account the existence of the Dutch Advertising Code. This code is non-binding. Nevertheless, the Dutch Advertising Code is broadly supported and enforced, making it an effective piece of self-regulation. The Advertising Code already targets misleading advertising. For example, the Code states that the form and content of an advertisement shall not undermine confidence in advertising, an advertisement shall not arouse feelings of fear or superstition without justifiable cause and advertising shall not be dishonest.
Political Advertisements
In 2021, the Dutch Ministry of the Interior published a Code of conduct for online political advertisements. The Code aims to regulate and bring transparency to online marketing for political parties, during elections, in order to shield citizens from encountering misleading or false information.
The new Code brings up certain questions surrounding Dutch advertisement law: what’s the content of the Code? And what does it add to the already existing advertisement legislation?
Online platforms and political parties
Firstly, political parties should take into account the existence of this Code. Also, because in 2017, an Amsterdam judge recognized political parties’ activities as commercial activities.[1].
Secondly, the Code has no formal status and isn't binding. Instead, the Code is meant to be a guideline. However, online platforms and political parties are called upon to comply with the centent of the Code.
With their endorsement and signature, the platforms and parties recognize a joint responsibility over the transparency and integrity of the elections and their accompanying online campaigns. At the moment, 11 political parties (GreenLeft, Labour, Party for the Animals, Socialist Party, Christian Union, Democrats 66, CDA, DENK, Reformed Political Party, 50PLUS and People’s Party for Freedom and Democracy) and 4 online platforms (Snapchat, Facebook, Google and TikTok) have signed the Code.
Misleading content
The Code aims to implement a number of responsibilities and obligations. For example, avoiding the spreading of misleading content and deepfakes, refraining from psychological profiling for targeting purposes, refraining from receiving foreign funding to pay for online political advertisements, providing advertiser and advertisement details in publicly available libraries and countering inaccurate information on the electoral process.
Misleading content is generally speaking a problem. Accountability for unlawful misleading advertising in legal proceedings is already possible. Moreover, filing a complaint of misleading advertising with the Advertising Code Committee is possible. Now, acting on misleading political advertisement is given a boost by the Dutch governement in an effort to give more transparency to the public by all political parties.
Conclusion
If you have a question concerning misleading contant and/or advertising law, don’t hesitate to contact us.
Joost Becker, advertising lawyer.
[1] Rb. Amsterdam, 6 juni 2017, ECLI:NL:RBAMS:2017:3912.
