The limits of Party Autonomy: Contracting out of consumer protection advertising rules?

A very interesting case in the Netherlands, dealing with the television programme Heel Holland Bakt. This programme is an adaptation of the immensely successful British version The Great British Bake Off, and actually made under license from the British intellectual property right holders of the programme.

As a part of the second season of the Heel Holland Bakt version, the Dutch supermarket chain Albert Heijn started selling baking equipment, making use of the logo of the Heel Holland Bakt programme. The programme, however, is broadcasted on Dutch public television by broadcast organisation Max. Max, as the responsible organisation for the broadcast of the Heel Holland Bakt series, has now been fined 162.000 euro by the Dutch Media Commissariat (Commissariaat voor de Media) because it enabled Albert Heijn to profit by providing the merchandise-rights on the programme.

Max is now appealing this decision because it claims this is not how it works. The BBC Worldwide company, the commercial branche of the BBC, has sold the rights to make the television programme to Max, but this did not include the merchandise-rights, which remained with BBC World. BBC Worldwide in its turn sold the merchandise rights to Ahold, mother company of Albert Heijn supermarkets. Max claims, right so it seems, that it has nothing to do with this and can therefore not be held to have enabled a commercial party to benefit from its publicly-financed broadcast.

This raises the very interesting question whether this now offers a model to contract out of mandatory consumer protection rules. Dutch consumers are protected through a prohibition on advertising in programmes on the Dutch public television networks (there are three of these networks, that do have blocks of advertising on television named STER). However, by bringing the programme format to another country and licensing the broadcast rights back (a variety of the sale and lease back construction), perhaps these mandatory rules can be broken? We will have to follow the appeal in order to find out.

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