Background
The President of the Polish Office of Competition and Consumers Protection (further “the Office”) has issued recommendations on the labelling of advertising content by social media influencers.
Influencers’ content may be misleading as to whether a message is neutral or commercial in nature. Consumers should be properly informed that content presented by influencers constitutes advertising or promotion of products/services of third parties or their own businesses. The advertising content must not be misleading (e.g. it must not be crypto-advertising or it must not omit important information needed to make a decision on the contract thereby causing or is likely to cause an average consumer to take a contractual decision, which he would not have taken otherwise). In case of any doubts as to whether material about a product or service constitutes a commercial message and whether it should be labelled as an advertisement, it is recommended to do so.
Detailed recommendations for influencers
In particular, the President of the Office underlines the following:
- Regardless of the type of commercial cooperation between influencers and the advertising agency or the advertiser (i.e. the way the contract is concluded, the form of remuneration, the advertiser’s influence on the material, and the duration of the cooperation) any commercial content or advertising material should be distinguished from neutral information. It should be labelled as an advertisement and indicate the promoted brand.
- A self-promotion, i.e. advertising one’s own brand, including one’s products and services should be clearly marked as self-promotion to be distinguished from neutral information.
- If one form of cooperation with the influencer is that the advertising agency or the advertiser sends directly to this influencer so-called PR packages and if this influencer chooses to publish when he/she receives his/her first gift from a particular brand, the influencer should inform followers that the product was received as a gift. But if the influencer wants to share with followers that he/she has received another gift from the same brand (or its affiliates), it should be marked as advertising material.
- Influencers should label the advertising material that they publish on their social media channels in a way that is clear, unambiguous and understandable to any audience. It should be visible to followers. Influencers should also inform which brand they advertise.
- According to the recommendations labelling advertising materials shall be considered legible, unambiguous and understandable if:
- it is in a prominent position e.g. at the beginning of the description or recording
- it stands out from the rest of the content
- it is clear and in a sufficiently large font size
- it should be in Polish if the profile is in this language
- terms and language should clearly indicate the commercial nature of the publication.
Hints for PR agencies and advertisers
The recommendation should be taken into account also by advertising agencies or advertisers when they start cooperation with influencers. Incorrect labelling of advertising content may have legal consequences not only for influencers but also advertising agencies and advertisers.
- It is advisable that any contract between the influencer and the advertiser or advertising agency should have appropriate provisions on the need to label advertising material published on social media in accordance with the recommendations.
- The advertiser or the advertising agency should include in their contracts with influencers adequate verification procedures for the correct labelling of advertising materials in accordance with the recommendations and the contract and consequences in case of failure.
- The advertising agency and the influencer have the right to refuse to cooperate if the advertiser does not require any labelling of advertising material published on social media or requires labelling that does not comply with the recommendations.
Incorrect labelling of advertising content may have legal consequences for the influencer, the advertising agency and the advertiser. Firstly it may result in imposing by the President of the Office some orders, including the payment of the penalty. Secondly, it may result in civil claims.
