The labelling of sponsored materials by influencers has already been discussed in the “Unfair Competition & Compliance Law Portal” in 2019, showing the solutions in force in Germany and judgements of German court:
- Influencers’ activity and competition law
- Influencers violate law when they do not mark the links as advertisement
- Hashtag #ad at the end of the post on Instagram is not sufficient advertisement marking
- Obligation of marking of influencers’ advertisement depends on the content of the certain post
In the meantime, issues related to misleading practices of people earning money from their online image have also become the subject of interest of the President of UOKiK.
After carrying out a number of inspections and looking at the advertising market in social media, the President of UOKiK first used a brochure with advice for consumers: “Instatips for consumers” and then “Recommendations of the President of UOKiK regarding the labelling of advertising content by influencers in social media”. Both brochures can be downloaded in full from the UOKiK website.
The main messages from the brochure published by UOKiK are: “Be careful”, “Think critically”, “Check before you buy”, “Beware of links”, “Beware of promotions, stars, catches and draws”.
Some of the advice may seem obvious but it is worth bearing in mind that the Internet and social media are used by almost everyone, including groups of consumers subject to special protection, such as children, elderly or disabled people.
In particular, children and young people are susceptible to the influence of “idols” which are now more and more often people creating their identity through social media.
Products or services shown by influencers are not necessarily reviewed objectively – it must not be forgotten that such materials are created in cooperation with companies that offer them, it can be a monetary remuneration or the so-called barter. It is worth paying attention to the proper labelling of advertising materials, as well as the lack of them if the content of the material clearly indicated that it is sponsored.
The brochure for consumers draws attention to the phenomenon of the so-called drop shipping. It often happens that products promoted by influencers are sold by online stores based outside the EU. This may involve higher shipping costs, additional fees, long waiting times as well as the lack of consumer rights that apply in Poland.
Tips for consumers correspond to the recommendations for influencers which were created by UOKiK after consultations with representatives of the influencer marketing industry, the Advertising Council and scientific community.
There can be a definition of an influencer found in those tips – a creator who actively runs its social media, communicating with their followers. Through his publications he can influence their followers. Through his publications, he can influence their opinions, decisions or behaviour. An influencer is an entrepreneur if with his online activity derives material benefits (not only financial) and at the same time runs an organised business on his own behalf and on a continuous basis (cf. Art 3 of the Act of 6 March 2018 Law on Entrepreneurs). This also applies to situations where the influencer has not registered a business.
The publications also draws attention to unfair practices such as:
- a misleading omission if it omits information needed by the average consumer to make a decision regarding the contract and thus causes or is likely to cause the average consumer to a make a decision regarding contract that he would not have otherwise made,
- surreptitious advertising involving the use of journalistic content in the mass media to promote a product where the entrepreneur pays for this promotion, and this is not clear from the content of from images or sounds easily recognisable by the consumer,
- an act of unfair competition in the form of a statement which, encouraging the purchase of goods or services, gives the impression of neutral information.
Guidelines on the criteria for recognising certain content as advertising and the related obligation to label then are important. Advertising is both commercial content, including self-promotion of own brands, and advertising materials. It is irrelevant how the contract was concluded, in what form the influencer received remuneration (in cash or in kind), the duration of cooperation or whether and to what extent the advertiser has influence on the content of material.
Situations were also distinguished in which it is not necessary to label the material as advertising but in accordance with good practice it should contain information, e.g. about receiving a gift for the first time from a certain brand or a free invitation.
UOKIK’s recommendation contain also instruction as to the methods of labelling content, including the use of two-level labelling (using tools provided by a given platform and on its own).
The brochure also refers to the AR filter prepared by the Office under the name #Oznaczamreklamy (#Ilabelads) for use on Instagram and Facebook.
Importantly, the recommendations also contain a description of legal regulations and consequences that influencers may suffer in the civil and administrative law spheres.