Vlogging (“video blogging”) has become extremely popular over the last couple of years. It does not come as a surprise that considerably more companies seem to find their way to vlog-advertising. During her Television interview on the well-known Dutch TV Show “Kassa” of Monday 21 November 2016, Mrs De Cock Buning, chairman of the Dutch Media Authority, said that the Dutch Media Authority is planning to implement stricter rules on surreptitious advertising, especially when it comes to vloggers (“video bloggers”). According to Mrs De Cock Buning, it is often unclear whether vloggers are being paid for displaying or advertising certain products in their vlogs (“video blogs”).

The position of the Dutch Media Authority does not come as a surprise. Earlier this year, the Dutch Advertising Commission already set an example with respect to (indirect) advertising on vlogs. In its decision of 17 March 2016, the Advertising Commission ruled that vlogging is regulated under the Dutch Advertising Code on Social Media (Dutch Advertising Commission, 17 March 2016, File no. 2016/00079). Thus, both vloggers and companies interested in advertisement collaborations should operate within the scope of the Dutch Advertising Code.

Case details

The Dutch vlogger Mascha Feoktistova is considered a well-known Dutch vlogger, with more than 190,000 followers on Social Media. Every day, Mascha uploads a vlog on her YouTube channel, in which she offers her viewers a glance into her personal life. On 15 January 2016, she posted a vlog that shows her and her boyfriend visiting a Swiss Sense store, in search for a new bed. During the next 9 minutes, the vlog shows a sales conversation as well as the Swiss Sense product range. Three days later, on 18 January 2016, Mascha posted another vlog. This vlog shows Mascha browsing the Swiss Sense webshop, stating that Swiss Sense offered her viewers a discount code. In the proceedings before the Dutch Advertising Commission, it became apparent that Swiss Sense also offered her a discount on the products she purchased, in exchange for embedding her vlogs on the Swiss Sense website.

Complaint

The complainant inter alia argued that the aforementioned vlogs should be considered a cunning way of advertising, as Ms Feoktistova did not mention her commercial link with Swiss Sense. In view of the complainant, this constitutes a breach of the Dutch Advertising Code on Social Media, as her statements are influenced by the commercial relationship with Swiss Sense. Swiss Sense argued that they did not influence the content of the vlogs and thus, the Advertising Code on Social Media should not apply in the case at hand.

Judgment

The Advertising Commission ruled that vlogs fall under the scope of social media. Moreover, in view of the fact that these vlogs originated from a well-known vlogger, they have the potential to reach a large audience. Therefore, these vlogs can be said to be of commercial value. Thus, according to the Dutch Advertising Commission, the Dutch Advertising Code on Social Media applies in the case at hand. Moreover, the Commission ruled that it is not crucial whether or not Swiss Sense was able to determine or influence the content of the advertisement. As Ms Feoktistova was offered a discount, it is clear that there was some sort of incentive by Swiss Sense and that she was rewarded for her commendation. Both Ms Feoktistova and Swiss Sense therefore had to specifically indicate that she benefitted from the vlog. The Dutch Advertising Commission therefore ruled that these vlogs are in breach of the Dutch Advertising Code on Social Media.

Keeping in mind the position the Dutch Media Authority has taken, vloggers and companies planning to lodge vlog-advertising campaigns should always keep in mind the requirement to clearly inform the public of their collaboration.

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