Dutch regulators consult in parallel about the online decision-making processes

By Marianne Minnecré-Kracht, Roelien van Neck, Karen Berg

12-2019

Recently, two separate consultations were launched by regulators about the online decision-making environment. This refers to the way in which a website is designed to sell products or services. The consultations are important for all professional parties that offer products or services online in the Netherlands. Specific mention is also made of providers who offer online services in exchange for personal data, such as providers of social media (reviews, likes) or online games (loot boxes, microtransactions).

The Dutch Authority for the Financial Markets (AFM) and the Netherlands Authority for Consumers and Markets (ACM) describe in their consultation documents that the design of the online choice environment can steer a consumer in a certain direction. They want the choice environment to contribute to the consumer making the best choice for him or her. The AFM and the ACM both make increasing use of behavioural scientific insights in their supervision and this is what the consultation documents are based on.

AFM

The AFM's Principles for Choice Architecture relate to financial-services companies. The document is 13 pages long and contains 12 principles for the choice architecture. The principles "serve as a guidance on a topic which reflects on various legal standards that the AFM is responsible for supervising. As such, the purpose of the principles is not to prescribe how companies should meet a particular standard, but rather to describe the AFM’s expectations in this area." according to the AFM.

ACM

The ACM's Protection of Online Consumers Guidelines apply to all sectors, except where specific exceptions have been specified, such as financial activities and services. According to the ACM, the guidelines also apply to the Telecommunications Act, because provisions of the Act "have a broad effect on online merchants". The 63-page document explains the possible conduct of traders and gives examples of conduct that the ACM believes to be lawful and unlawful. This concerns, for example, certain earning models for games (such as in-app purchases or loot boxes), so-called social evidence (such as online reviews, followers and likes) and the order and presentation of products and services (including paid placement or unclear financial relationships).

Demarcation?

Although the AFM and the ACM try to separate the documents - by stating that one document relates to financial-services companies and the other to everything except financial activities and services - practice shows that this boundary is not so easy to draw. In practice, combinations of products and services are offered. For example: a provider who offers an online bundle of telephone, internet access and a terminal equipment - such as a modem or a smartphone - on credit, may in future fall under the guidance of the ACM as well as the principles of the AFM. In addition, the Telecommunications Act is currently being amended as a result of the European Electronic Communications Code, which will in any case impose extensive sector-specific information and transparency obligations on the same bundle as a whole.

Deadlines

The consultation period for both documents runs until 16 January 2020. We can imagine that the consultation documents raise many questions. If you have any questions, please contact the authors.