“#advert” Is Not Sufficient – Influencers Underneath Scrutiny

There is no doubt that sponsored content on blogs, Instagram, or Facebook is advertising or, in some cases, hidden advertising. Much depends on whether they are properly labeled and whether they can mislead the consumer. At the end of September, the Polish Office for Competition and Consumer Protection launched an investigation and wants to take a closer look at the industry.

Influencers have long worked with well-known (and as yet unknown niche) brands to promote their services or products. This activity constitutes an advertising activity and is subject to the general rules for advertising in Poland. These rules are set out in several important laws, including the Competition and Consumer Protection Act, the Broadcasting Act, and the Act to Combat Unfair Market Practices. In addition, separate area-specific regulations apply – depending on what the advertising content is about. This in turn makes it necessary to assess the legality of an advertising message on a case-by-case basis within the framework of a certain regulatory area: banking, telecommunications or food law. Nevertheless, the basic rules remain valid regardless of the advertised industry and the advertised product (service). In influencer marketing, it is extremely important that the Promotional content is clearly identified as advertising or sponsored material.

Influencer marketing is going well

An industry survey was conducted in April 2020 to review the impact of the coronavirus pandemic on the influencer marketing market. His results show that 39.6% of advertisers don’t intend to make major changes in their influencer marketing plan. This was the most common answer. The second is “I have stopped my activities” – 27.5% of respondents gave this answer. On the other hand, 24.8% of respondents intend to expand influencer activity soon.

Investigation pending

In September 2021, the President of the Office of Competition and Consumer Protection (OCCP) launched an investigative process whose aim is to study the influencer marketing market and develop guidelines for those who make money promoting products on social media . The office is covering the entire sector Rules that regulate the cooperation of influencers with brands and advertising agencies and the transparency in practice the message for other users of the network. The authority checks whether content is in social media is clearly and legibly marked as advertising, whether such a marking is visible, for example whether it is only visible after scrolling the page or is hidden under an abbreviation. If such a marking is not visible, the office will examine what the Reason for the negligence of the influencers, eg whether it is not requested by sponsors. Much commercial content on influencer profiles on Instagram, Youtube, Facebook or other social media is not marked as advertising at all. Others are inadequately marked, for example only with the hashtag “#ad”, which can be incomprehensible to a Polish Internet user – the office points out.

In connection with the initiated proceedings, many Youtubers and influencers have already received letters from the Office asking them to produce copies of the contracts completed with brands and advertising agencies. The investigation is carried out ad rem and not against specific entrepreneurs. The investigation will cover many industry players and they can expect a subpoena from the agency in the near future. After determining failure to provide information is requested by the President of the OCCP as part of such a procedure or misleading Information is punished with a fine of up to 50 million euros.

Unfair hidden advertising

Paid advertising for products and services without a clear indication that the content is sponsored violates the prohibition of hidden advertising and can be considered as a unfair market practices and in some cases a law of unfair competition. The Office recognizes that influencers have a huge impact on internet users, especially young ones. If they are promoting a product, there is a good chance that fans will be happy to follow them and buy it. That’s unfair when an influencer is actually being paid for their post but giving the impression that they share a private opinion. Sponsorship is to be understood broadly – the payment does not have to be money, it can be other services such as a trip or the testing of luxury products. Consumers should be clearly informed about all these situations – stresses the President of the Office for Competition and Consumer Protection.

Advertising, advertorial or objective evaluation?

A problem similar to hidden advertising is the so-called Advertorial technique used in the press i.e. a sponsored article. Apart from the advertising regulations The activities of journalists are also subject to the restrictions of the press law. Article 12 of the Press Law clearly states that a journalist may not engage in covert promotional activities that seek financial or personal gain from any person or organization interested in publishing the advertisement.

With the initiation of the investigation, the office wants to begin with straighten the sponsored content market on social networking sites – somewhat neglected so far – so that internet users get a clear message about what is advertising and what is an objective product evaluation. Consumers must not be misled.

First self-regulation in Poland

The office emphasized that it counts on the initiative and self-control of the industry – apart from some codes of conduct in the journalism industry, influencers have so far lacked such self-control. In the last few days, the employers’ association of the Internet industry has published a guide to influencer marketing – a code of conduct for customers, influencers and agencies. It is the first such self-regulation in Poland.

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