Netherlands: Adopted ACM updated Guidelines on the Protection of Online Consumers

On 31 October 2022, the Netherlands' Authority for Consumers and Markets (ACM) published its updated Guidelines on the Protection of Online Consumers, setting boundaries for online persuasion. The guidelines are harmonised to EU regulations, such as European unfair commercial practices directive (Directive 2005/29/EC), Consumer rights directive (Directive 2011/83/EU), Directive on the indication of the prices of products (Directive 98/6/EC), Directive on unfair terms in consumer contracts (Directive 93/13/EEC), e-Privacy directive (Directive 2013/11/EU), Electronic commerce directive (Directive 2000/31/EC) and Services directive (Directive 2006/123/EC). The ACM distinguishes between two main categories of unfair commercial practices, i.e. misleading commercial practices (incorrect, misleading, omitted or unclear information) and aggressive commercial practices (using intimidation, coercion or force). The guidelines contain a blacklist of practices that are prohibited under all circumstances, and examples are given for each category. Firstly, the guidelines redefine the "average consumer", stating that it should be considered as the average member of the group on which the commercial practice is focused, and not a general average consumer. Referring to this, the personalization of prices and offers cannot take advantage of the specific vulnerabilities that could make it easier to persuade a certain group. The main categories considered in the guidelines concern the personalization of prices, offers, order and presentation of products, unfair business models for games (i.e. loot boxes, limited time offers, hidden advertising etc.), unclear information both on the products and on data protection, standard settings and hidden information (it can be used only if the default settings are the most favourable to consumers) and the abuse of instinctive behaviour of consumers. Finally, the guidelines regulate difficult cancellations, stating that the contract conditions must always be clear, and the social proof mechanisms (online reviews, testimonials, likes and followers etc.), that are admitted only if truthful.