Netherlands updates rules on online deception of consumers

In November 2022, the Netherlands Authority for Consumers and Markets published an update to its Guidelines on the protection of the online consumer, originally published in 2020. The revised guidelines have been updated to incorporate new EU legislation and recent developments in the digital economy.

Guidelines on the protection of the online consumer

In 2020, The Authority for Consumers and Markets (ACM), which enforces consumer protection laws in the Netherlands, published the "Guidelines on the protection of the online consumer", a resource for online entrepreneurs, marketers and those working in e-commerce. These Guidelines draw the line between seducing and misleading consumers in the online environment. Furthermore, the Guidelines contain tips on how to set up an online environment where customers can make a free and fair choice when buying products.

Reasons for the update

The ACM published an update to the 2020 Guidelines to incorporate developments in European regulations, such as the Omnibus Directive. Among others, this Directive includes rules on ranking and personalised pricing. In addition, from 2024 the new rules of the European Digital Services Act will apply, which will place additional obligations on online platforms. The updated Guidelines mention these new rules.

Overview of the Guidelines

The major features of the Guidelines include the following information:

• How to prevent deception in an online environment;
• The rules governing the proper layout and setup of an online environment;
• What online consumers should be legally informed about; and
• How and by what means consumers are to be given a free and fair choice when buying online.

These topics are discussed in more detail below.

New topics in the revised Guidelines include additional rules on advertisements, influencer marketing and the promotion of usage (increased or otherwise) of online services.

(At the moment the Guidelines are only available in Dutch on the ACM website although an English translation of the updated Guidelines should be released later this year).

How can you prevent deception in an online environment?

Consumers need clear information when buying a product. Influencing is allowed, unless tactics are used that steer the average consumer to take a decision that would not have been made if the decision had been informed. In other words, consumers should not be deceived. The ACM uses the following principles to prevent deception in the online environment:

• Design your organisation to promote compliance;
• Test the effects of your online decision-making environment;
• Provide complete information;
• Provide correct information;
• Provide understandable information;
• Provide the necessary information before consumers make a purchase;
• Make sure the information is easy to find;
• Provide a logical and fair design (e.g. for the website);
• Provide favourable default settings for consumers;
• Consider the vulnerability of consumers;
• Look at the whole picture when communicating to consumers.

What are the rules governing the design of an online environment?

The ACM emphasises that consumers must have trust in the online environment. Consumers should not be misled into making a purchase by a website's misleading design. Therefore, the Guidelines contain specific rules for:

• Default settings;
• Ranking of search results;
• Termination of agreement;
• Automatic click behaviour.

What are the legal requirements for informing online consumers, and how should this be done?

According to the ACM, consumers need clear, accurate and complete information when deciding to buy a product. Therefore, the Guidelines contain an overview of the legal rules on the specific topics listed below:

• Information about the company and offer;
• Prices;
• Personal information;
• Consumer reviews;
• Advertising in general;
• Advertising by influencers.

How are consumers offered free and fair choice when selling online?

Don't pressure consumers and provide honest information. Therefore, the ACM provides an overview of rules that apply to the following specific topics:

• Selling in games;
• Personalising;
• Encouraging more and more active use;
• Emphasising limited availability.

Finally

The ACM emphasises that the Guidelines are not exhaustive. They are a tool, which sets out how the ACM interprets consumer rules for common online influencing techniques. Following the Guidelines will help online sellers comply with the rules but is no guarantee of immunity from ACM actions. Whether and how the ACM acts depends on concrete circumstances.

For more information on the rules surrounding online sales and marketing in the Netherlands, contact your CMS client partner or local CMS experts: