On 14 December 2021, the Vlaamse Media Regulator (Flemish Media Regulator, “FMR”) published its so-called Content Creator Protocol (“protocol”). This protocol is a consequence of the implementation of the EU Audiovisual Media Services Directive into the Belgian media laws, under which the FMR is authorized to monitor compliance with the media law of the Flemish Community (“Flemish Media Decree”). 

This new protocol, which contains strict(er) guidelines towards content creators, influencers and vloggers established in Flanders, focuses on three aspects: (i) commercial communications on social media, (ii) commercial communications and content towards minors and (iii) hate speech. 

Commercial communications on social media

Within the scope of commercial communications on social media, the protocol mainly focuses on the legal obligation of sponsor identification. In this regard, the following labelling guidelines are applicable to content creators:

• From the moment a content creator receives a benefit from a company (e.g. a payment, products, gift cards, a free entrance to an event, trips (incl. hotel accommodations), unique experiences...), and they mention (visually and/or orally) this company (or its brand, product or services) in their video, the content creator should:
  • place the Dutch terms “advertentie”, “reclame” or “publiciteit” at the beginning of the video;
    
    
    • If the audience mainly consists of non-native speakers, the English term “advertising” or “publicity” may also be used. Abbreviations such as “ad”, “spon” or “pub” are  not sufficient; and/or
    • If the content creator uses a discount code or affiliate link, then this must be indicated with an asterisk (*) and include the following message: “*Als je via deze link iets koopt, krijg ik daar commissie op” (in English: “*If you buy something through this link, I will receive a commission”)
      
      
  • tag the company (as “@partner”); and
    
    
  • use the “toggle” application and indicate that the video contains commercial communication within the platform , unless this would be technically impossible.

The protocol also provides some practical examples implementing these labelling guidelines, giving content creators a clear idea of how to communicate transparently.

It should be noted that the protocol explicitly states that the following situations do not constitute commercial communications:

• the content creator purchased the product or service mentioned in their content entirely on their own, at a regular market price, without receiving any form of discount or benefits; or
• the content solely contains self-promotion. This could be the case if the content creator promotes their own products, merchandising, services or videos. However, if the content creator for example releases a clothing line together with a company/brand, this will not be seen as self-promotional.

The protocol is stricter than the existing Influencer Guidelines of the Communication Center (i.e. the Belgian Advertising Council), as from now on content creators (i) should tag their partner(s), (ii) should use a certain app, and (iii) cannot use the terms “sponsorship”, “promotion”, “sponsored by” or “in collaboration with” nor abbreviations such as “ad”, “spon”, “prom” or “pub”.

It is clear that transparency is key for the FMR so that the consumer is able to immediately recognize any commercial communication.

Minors and hate speech: resumption of the Flemish Media Decree 

With regard to these two aspects, the protocol reiterates the provisions of the Flemish Media Decree and focuses on the following obligations:

• A commercial communication to minors must be clearly identifiable;
• Product placement in videos to minors under 12 is prohibited, as is the mentioning of logos of a sponsor;
• A commercial communication may not incite hatred or violence based on sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation;
• Publicly invoking to commit a terrorist offence is prohibited.

The protocol also states that a content description of potentially inappropriate elements for minors should be included in the content creators’ videos, and that videos containing pornographic images or images of gratuitous violence should be encrypted (whereas the Flemish Media Decree also allows for parental control by way of alternative).

Way forward: a missed opportunity for cooperation

Although the protocol constitutes soft law (and is therefore not legally binding), given the fact that it emanates from the FMR, which has been authorized to supervise the compliance by audiovisual media services providers under its jurisdiction with the Flemish Media Decree, its value cannot be dismissed.

Content creators, influencers and vloggers will have to consider the protocol when providing commercial communications on social media, however (for now) only insofar they are established in Flanders. The supervising authorities of the other Belgian communities (i.e. the French Community and the German-speaking Community) and the bilingual region of Brussels-Capital have not yet published a (similar) protocol. As a result, legal uncertainty and ambiguity may arise, since in reality, online commercial communications do not confine within the territories of a specific community, but rather reach any consumer beyond borders. Hence, the supervising authorities, unfortunately, missed the opportunity to address this together in a co-ordinated matter and preserve transparency towards consumers on commercial communication. It remains to be seen if and when more guidance will be provided in this regard.