The Dutch Media Authority (“Commissariaat voor de Media”) has recently published new policy rules for commercial media services. The policy rules deal with advertising, sponsorship and product placement. Policy rules on programme quota and policy rules on the qualification of commercial media services on demand have also been published. Below is a brief overview of the most salient points in these policy rules.
Dutch Media Authority
The Dutch Media Authority is responsible for audiovisual content and distribution matters in the Netherlands. It grants licenses to broadcasters, registers VOD services, other media services, and systematically monitors compliance with the rules of the Dutch Media Act on subjects such as programme quota, advertising, sponsoring, product placement and the protection of minors.
2022 qualification of commercial media services on-demand policy rule
By means of this policy rule, the Media Authority interprets the way in which it determines in practice whether an on-demand commercial media service falls under its supervision. A new addition to this policy rule is the explicit requirement that on-demand commercial media services cannot only be provided by providers who make media available on their video on demand platform, but now must include providers of video platform services such as YouTube, Instagram and TikTok. The Media Authority now refers to video platform services as video uploaders.
As of 1 July 2022, video uploaders that meet certain requirements must register with the Media Authority and comply with the rules in the Media Act. (See also: "Netherlands issues New rules and registration requirements for influencers")
2022 commercial media institutions quota policy rule
The 2008 Media Act was amended on 1 November 2020 with the implementation of the amended Audiovisual Media Services Directive. The 2018 revision of the Directive tried to make the regulation of on-demand commercial media services (i.e. VOD services) and broadcasting services as uniform as possible. As a result, VOD services must now comply with quota provisions. This means inter alia that VOD services must include a minimum of 30% of European works in their catalogues.
To determine the share of European works of an on-demand commercial media service, the total number of European titles listed in the catalogue in question will be compared against all titles listed in that catalogue. Feature films and full seasons of television series will always be deemed titles in this respect. If a provider of a VOD service can proof that the production or acquisition costs for one episode of a television series exceeds EUR 2 million, that episode may be qualified as a feature film.
Among others, VOD services are also required to encourage the promotion of European works through:
- a section dedicated to European works that is accessible on the service's homepage;
- the possibility to search for European works in the search tool;
- the use of banners or similar tools.
The 30% European works share requirement does not apply to providers of VOD services with a low turnover or low audience. Regarding low turnover, the Media Authority has adopted a EUR 2 million threshold in line with the European Commission guidance. Providers of VOD services with an annual turnover that does not exceed this threshold can apply for this exemption. As for the other exception, the Media Authority states that a low audience exists when the assumed number of potential users is 80% of the total population of the Netherlands, but the user share enjoyed by the VOD service in question remains below 1% of the assumed number of potential users. In this case, a provider of a VOD service could apply for an exemption on the basis of having a low audience.
The Media Authority may also grant an exemption if the nature or the subject of the VOD service makes it practically impossible or unjust to comply with the quota requirements. In assessing whether this is the case, the Media Authority can take the following circumstances into account: the on-demand commercial media service's target audience (e.g. a very specific target audience such as children), or its nature (e.g. a service dedicated solely to horse-racing content, baseball, or opera music, which is currently not produced within the EU), its inability to acquire a sufficient number of rights for European works or special economic circumstances (e.g. start-up issues for new on-demand commercial media services). When an exemption is provided due to start-up issues, this exemption may not be granted for more than three calendar years.
2022 advertising of commercial media institutions policy rule
With the three revised policies on advertising, sponsorship and product placement, the regulations for providers of commercial media services have been aligned as much as possible with the regulations for providers of broadcasting services (i.e. television and radio).
Advertising messages must be clearly recognisable to the average member of the public by virtue of their form and content. This is fulfilled when the advertisement is provided with a message such as 'advertisement', 'advertisement' or 'advertorial'. Advertisements intended for children under the age of 12 shall be appropriate for children's comprehension and clearly recognisable by children.
2022 sponsorship of commercial media institutions policy rule
The starting point for commercial media services is that sponsorship is allowed under certain conditions. News, current affairs and political information can never be sponsored. Furthermore, a sponsor statement cannot qualify as advertising.
In the case of sponsoring, the identity of the sponsor must be clearly stated at the beginning or at the end of the media offer. This requirement can be met if the programme provides a message such as "this programme/video has been made possible (in part) by" or "this programme/video has been sponsored by". In the case of videos, the statement must be included in the accompanying description. A sponsor statement, however, cannot contain a positive qualification, slogan, identifying melody, address, e-mail address, telephone number, internet address or channel on a video platform, unless this is the trade name of the sponsor.
2022 product placement for commercial media institutions policy rule
Product placement is in principle also allowed for commercial media services, but is not allowed for news, current affairs and consumer programmes, media offers of a religious or spiritual nature and children's programmes intended for children under 12 years. Like sponsoring, product placement cannot qualify as advertising.
The public must be informed in an appropriate manner that the media offer contains product placement. The announcement must be clearly legible or audible. This requirement is in any event met if the following text is used: "this programme/video contains product placement". In the case of videos, this statement must be included in the accompanying description.
Conclusion
Questions remain surrounding the revised policy rules for commercial media services published by the Dutch Media Authority. In short, it is not clear what the future holds. How will the Media Authority check whether (on-demand) commercial media services comply with these rules and how high will the fines be for non-compliance?
For more information on these policy rules and the EU and Dutch media industries, contact your CMS client partner or local CMS experts:
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