Dossier 12: The Creator Economy

The rules for influencers in the updated Media Act

The Dutch Media Authority is the government body that supervises compliance with the Media Act 2008. They oversee public and commercial media broadcasters and providers, such as TV channels, radio stations, and online platforms. Their aim is to protect the independence, plurality, safety, and accessibility of audiovisual media in the Netherlands.

Recently, the Media Act got an update that has been in effect since July of 2022. This update included a number of rules for so-called ‘video-uploaders’, parties who upload videos to platforms such as YouTube, TikTok, and Instagram. The Media Act now puts these video uploaders under supervision of the Media Authority and they now have to be transparent about advertisements, consider minors, and disclose company information.

Martijn den Dekker and Fenneke Holst, from the Dutch Media Authority, answered some questions about these new rules.

Sjef van Beers: Why has the Media Act been changed?

Dutch Media Authority: The adaptations to the Media Act serve the purpose of offering the consumer transparency with social media video content too and better protects them against harmful content. Commercial messaging now has to be more clearly recognisable and minors must be better protected from harmful content. 

It is not surprising that uploaders of videos now have to also comply with legal rules. The number of uploaders, as well the content they produce, has grown explosively and online videos are taking up an increasingly growing place in the complete media landscape. 

By adjusting the Media Act, the rules that previously only applied to other media now also apply to videos posted on social media channels.

Earlier, by the way, there was self-regulation through the Advertising Code. Now that the legislator has adapted the Media Act, there are legal obligations and there is supervision of compliance. That supervision is carried out by the Media Authority.

Part of the legislation is the obligation for video uploaders to register with the Media Authority. That responsibility, like compliance with the rules, lies with the video uploader themselves. 

SvB: What does it mean to be “under supervision”? Will there be active checks on what video uploaders are posting?

DMA: Yes, there will be active checks, but it is impossible to view all content. The most important thing is that what video uploaders must abide by is now legally regulated. It’s really all about taking good care of your viewers. Most importantly, when making videos, always keep in mind: am I clear about what advertising is, is my content suitable for minors, and am I accessible to my viewers? We provide further clarification on these rules on our site: cvdm.nl/uploader.

We conduct risk-based monitoring, which means that we pay the most attention to where the risks are greatest. For example, the harmfulness to young viewers. They are extra vulnerable because they are (still) less aware of being influenced. Especially for this group it is important that it is abundantly clear when something is advertising. A possible choice in risk-based supervision is to supervise more intensively (for a period of time) video uploaders that target young children. With risk-based monitoring, we look not only at harmfulness, but also at reach and target audience. These all influence the impact a video can have.

Signals, such as reports from viewers, may also prompt us to investigate. In situations where things go wrong, we assess what is an appropriate action in each case: for example, a good and firm conversation, a warning, or a fine. 

SvB: Who exactly falls under your supervision and will this group stay the same?

DMA: It is not exactly clear from the legislation which uploaders are, or are not, covered by the law. As a regulator, we made a trade-off: initially, only video uploaders with more than 500,000 followers who earn from the videos, post more than 24 videos in 12 months, and are registered as entrepreneurs with the Chamber of Commerce, need to register with us. Later we expect to adjust the criteria and increase the group we monitor. This gives video uploaders (both large and small) the opportunity to learn, get used to, and comply with the rules. It allows us as supervisors to gain hands-on experience with a small manageable group. We can then use the knowledge and insights gained from this to expand the target group. It is expected that the threshold of 500,000 followers will be adjusted downward in the future. We do not yet know where the threshold will eventually be. 

SvB: How has the legislation been received by the video uploaders? Is everything clear to them? Are they cooperating?

DMA: The contact we have with video uploaders is generally constructive and understanding. Of course there are detailed questions and sometimes people wonder why certain choices were made. We also see from the registrations that a large percentage of uploaders who are coming under surveillance have already registered properly. Those who have not yet done so, we request that they do so. Kindly at first, then more forcefully. We all have to get used to it and we also want to give video uploaders the opportunity to adjust their methods to the rules if necessary.

When the law was just changed, and when we came out with the first draft of the policy rules, there were some concerns among video uploaders. Several organisations knocked on our door to talk about the rules. That conversation has intensified and helped, among other things, to create the criteria that limit the group we monitor. We have to strike a balance between the interests of the consumer, the video uploader, and society. For example, the legislation also imposes financial and administrative obligations. You can’t expect an uploader with a dozen or so followers to comply to those. Hence a balancing act. 

Soon after the rules went into effect, we received several reactions to the requirement to have contact information accessible. Video uploaders said they had issues with disclosing company information because followers tend to use that information to make unsolicited visits to the influencer. Based on the feedback we received, we adjusted the interpretation of this requirement: an email address where the viewer can reach the uploader is now sufficient. Based on the practical experience of both the video uploaders and ourselves, we polish the rules where necessary.

SvB: The rules seem to be tailored for the uploaders, so really the content creators themselves. Are marketing and PR firms who develop campaigns for influencers also being considered?

DMA: Our job is to enforce the Media Act. So whoever falls under that law, falls under our supervision. So since the Media Act was revised, that includes video uploaders. We have no task in watching and assessing marketing and PR agencies as they are not covered by the Media Act. It can certainly help video uploaders if agencies are well-versed in the regulations. Information about the Media Act is on our website, but there are more rules. On the website influencerregels.com, the industry itself has created an overview of most important the rules that apply.

SvB: When a video contains advertising, one way to indicate this is by having “#ad” appear on screen or by using the options Instagram offers when marking a video as advertising within their interface. Does it matter to the viewer if this is on screen? Has any research been done on this?

DMA: The hashtag #ad was already widely used by video uploaders. We chose to adopt this mention as one of the possible mention options. As far as we are concerned, having the mention “advertisement” in the video is an example of how to make it even clearer to the viewer. Again, it is the video uploader’s own responsibility to be explicit about this. This includes not only the word used, but also, for example, how long it’s on display in the video and how prominent it is.

SvB: Your website explicitly mentions that words such as “partner” or “collab” are insufficient to indicate that content is sponsored. Who decides which words are allowed and how is this decided?

DMA: The Media Act describes what everyone must comply with, but because it is quite broad on many points, we as the regulator draw up so-called policy rules. That is a further specification of the law that frames and sets guidelines for how to interpret it. And in the policy rules that relate to video uploaders, we have indicated which words, in any case, indicate sufficiently and clearly if there is advertising, for example. They are examples, but it’s ultimately up to the video uploader themselves to make it clearly identifiable to everyone if there is advertising. So if you want to know exactly what the situation is, you can refer to the Media Act and our policy rules. Both can be found on our website.

SvB: Do you also keep an eye on how apps and social media platforms, who offer the infrastructure for the videos, function? Is there legislation being made for them as well?

DMA: The Media Act also includes rules for video platform services. These include being clear about commercial messages. For this, among other things, the services must draw up a code of conduct to which users must adhere. In the case of the platforms TikTok, Instagram, and YouTube, supervision is the responsibility of the Irish regulator because the companies are based in Ireland. The Media Authority has no supervisory role here.

At the European level, work has been done on rules for better protection of consumers online. Transparency about advertising is part of this. These rules relate to online platforms in general, so not just video platforms. The intention is for these European rules to be transposed into national legislation.

SvB: Is it also possible that the law will be modified as social media platforms update their apps and develop new video sharing capabilities?

DMA: It could be. Any change in practice could prompt the legislator to adjust the law.

SvB: What are the (geographical) boundaries of the law? Does it apply, for example, to Dutch creators who create content for an international market? And for people who live abroad, but upload Dutch content from there?

DMA: The Media Act applies to video uploaders based in the Netherlands, regardless of which market they target. Non-Dutch-based uploaders who have their activities and business abroad are not covered by these rules. They are subject to the regulations of the relevant country. To determine where a video uploader is based, what is important is where their headquarters are located or where editorial decisions are made. 

SvB: On your website it says that you are currently monitoring the first three rules of the new Media Act and will later expand to monitoring the other rules, which include European productions and incitement to violence. How are you going to do this?

DMA: We are dealing with a new situation. Both for the video uploaders and for us as the regulator. Therefore, we chose to start with what we think are the most important rules from the Media Act. Because the Media Act was not drafted specifically for this group of video uploaders (the video uploaders were added to an existing group of commercial on-demand media services, such as Netflix and Disney+), not all the rules are equally relevant. By gaining our own experience and by following the experiences of other European countries, we will gradually get a picture of how we want to deal with the other rules. 

SvB: Could you elaborate on the experiences of other European countries?

DMA: An ERGA (European Regulators Group for Audiovisual Media Services) report from last year (produced under the direction of the Dutch Media Authority and the Austrian regulator) shows that an increasing number of European regulators consider at least some of the vloggers to be media service providers and monitor their compliance with certain rules. Examples include Germany, Austria, and Belgium. In France, the self-regulatory organisation has developed a certification system for vloggers. And in Spain, as a result of a change in the law this July, influencers must register and ensure a clear distinction between editorial content and advertising. This year an ERGA working group is mapping in particular how commercial communication rules are applied to vloggers or influencers within different EU countries. At the end of the year a report will be released following this research.

SvB: The law has just been in effect for a few months now. Have any loopholes been found by you or by video uploaders that would require the law to be modified again?

DMA: Legislation is always a little behind the daily reality. Of course, there are always situations that are not covered by the Media Act. The question is whether you should regulate these through the Media Act or in some other way. It is up to the legislator to implement this wisely.

It would also be nice if the video uploader would not just look for ways to bypass the regulations, but instead focus on taking good care of their viewers. Fortunately, we have received responses from the industry that people are glad there are now legal rules. They provide guidance and, according to the industry, contribute to the maturing process. Providing clarity about advertising, by the way, is not entirely new. The industry itself already had rules for this. Now some things have also been laid down by law. 

The adaptation of this legislation is an important step to start the supervision. We hope that these rules will make video uploaders even more aware of their audience and their responsibility to treat their viewers with care.