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Influencer and the law - how to act legally and not expose yourself to the Office of Competition and Consumer Protection (UOKiK) inspection? A guide for influencers

Krzysztof Bardel|
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📋Contents
In recent weeks, the topic of influencers and influencer marketing in the legal aspect has become almost red hot. Left to their own devices until recently, conducting activities that escaped the outdated and ossified legal framework, influencers took actions that ultimately resulted in disastrous consequences after an investigation by the Office of Competition and Consumer Protection. The Office of Competition and Consumer Protection, and above all its President, have taken steps to show that influencers are obliged to comply with the law, and the current law does not require many modifications to effectively enforce it against this particular group. This article presents both the basic legal institutions that influencers must pay attention to, as well as advice on how to act in accordance with the law.

Influencer and influencer marketing

First, it should be established who an influencer is and what influencer marketing is. After all, if it is determined that a given person's activity cannot be classified in this way, the legal requirements described may not apply to them. An influencer does not have a single, encyclopaedic and exhaustive definition, but it is possible to reconstruct the essential attributes that characterise a person considered to be an influencer. An influencer is therefore a person who operates on the internet, or more specifically, in broadly understood social media, has built-up reach (an audience base) and a certain bond with their "public". Thanks to this, as the name suggests (from the English "influence"), they are able to influence, directly or indirectly, the decisions made by their audience. Influencers, as mentioned, use their reach built on social media to reach their audience. This is primarily done through portals such as Instagram, YouTube, Twitter, Facebook, TikTok or Snapchat. Of course, the set of platforms they can use is an open set; they can even build their reach on their own website/blog. Nor does it matter whether operating online is the influencer's only occupation or how they built their reach. Therefore, an influencer will be both Karol "Friz" Wiśniewski, the founder of the famous "Ekipa", who has been operating online for years and this is the centre of his activity, and Robert Lewandowski, who owes his popularity and reach to a sporting, non-internet career. As you can easily guess, such people do not live on energy drawn from the internet, so they turn their reach into money. This happens primarily through collaborations with various brands whose products – or the brands themselves – influencers advertise. And this is precisely what influencer marketing is – promotional activities, or more broadly simply marketing activities, in which influencers are involved. Example: Influencer X runs an Instagram account that focuses on football. He uploads videos and photos in which he talks about football, reports on matches in which he takes part and shows various tricks with the ball. Company Y, a leading manufacturer of football equipment, offers him a contract under which he will post a sponsored photo in which he is wearing shoes of this company, and in the description of this photo he includes a text prepared by company Y that describes the footwear in superlatives. In addition, , how much they make the game easier. The amounts that individual influencers can earn from such collaborations obviously depend on many factors, chief among which is data on their reach. However, the scope of the reciprocal consideration in relation to the marketing service can vary – as emphasised by the President of UOKiK, Tomasz Chróstny: "sponsorship should be understood broadly – payment does not have to be money, it can be another benefit, e.g. a trip, testing luxury products. Readers, listeners or viewers should be clearly informed about all such situations". This means that a large influencer will probably be satisfied with a high cash payment, whereas for a smaller one, payment for advertising, e.g. a restaurant on Instastory, will simply be a free meal. Until recently, it seemed that influencer marketing activities were somewhat slipping away from existing legal regulations. However, UOKiK shows that motivating them to engage in fair activities that do not harm consumers is not all that difficult and, most importantly, complies with the current legal status.

Unfair advertising, or how to mark content on the Internet?

A fundamental issue recently tackled by UOKiK is the correct labelling of advertising content. The legal basis for this obligation can be found in Article 16 of the Act of 16 April 1993 on Combating Unfair Competition. Pursuant to the first paragraph of the cited regulation: An act of unfair competition in advertising is, in particular:
  1. advertising that is contrary to the law, good practices or violating human dignity;
  2. advertising that misleads the customer and may therefore influence his decision to purchase a product or service;
  3. advertising that appeals to customers' feelings by inducing fear, exploiting children's superstitions or gullibility;
  4. a statement that, while encouraging the purchase of goods or services, gives the impression of neutral information;
  5. advertising that constitutes a significant interference with the sphere of privacy, in particular through soliciting in public places that is burdensome for customers, sending unsolicited goods at the customer's expense or abusing technical means of transmitting information.
The "type" of advertisement referred to in point 4 of the above provision (Article 16(1)(4) of the Act on Combating Unfair Competition) can be described as "surreptitious advertising" [kryptoreklama]. It is therefore an advertisement whose purpose is to encourage the recipient to buy a product, often even subliminally, while at the same time failing to create a clear impression that it has an advertising character. Surreptitious advertising is also described on the so-called "blacklist of practices" in the Act of 23 August 2007 on Combating Unfair Market Practices, pursuant to Article 7(11) of which: "The following misleading market practices shall be deemed to be unfair market practices in all circumstances: surreptitious advertising, which consists in using editorial content in the mass media to promote a product where the trader has paid for that promotion and that is not clearly identifiable from the content or from images or sounds easily recognisable by the consumer." In the cited provision, the term "paid" should of course be understood broadly, that is, as any financial benefit obtained by the influencer. This will refer both to enrichment (payment of a specific sum as remuneration for the advertisement) and to the absence of impoverishment (a free trip in exchange for an advertisement or a free meal at a restaurant). Example: Influencer A, who runs a popular TikTok account focused on lifestyle, fashion, makeup, etc. in cooperation with cosmetics company B, records a video (TikTok) in which she says that her favorite foundation is the one produced by company B. He lists its superlatives and emphasizes that he uses it every day and nothing works as well as this product. This advertisement is not marked in any way, which makes the viewer interested in a specific foundation, believing that their favorite influencer uses it because of its quality, and not as part of a paid cooperation. Moreover, the influencer did not receive any payment for it, but only a very extensive stock of cosmetics from a given company. Therefore, it committed surreptitious advertising. This action is, of course, unlawful. As resulting from the cited provision, it constitutes an act of unfair competition typified in the Act on Combating Unfair Competition, which carries both civil and criminal liability. It should be remembered – which once again clearly needs to be emphasised – that all content that may be of the nature of paid advertising requires labelling. This concept should be understood as broadly as possible. This means that if an influencer has accepted any benefits for an advertisement (money, barter, exchange, promotional coupons, etc.), the material published as a result of such an agreement must be labelled as an advertisement. However, there are quite simple ways to avoid this liability. It is enough – following the example of television programmes, which also advertise various products – to clearly label the cooperation. Indeed, what does clearly mean in this case? The regulations do not clearly govern this, and furthermore, both judicial jurisprudence, the practice of the President of the Office of Competition and Consumer Protection (UOKiK), and the views of doctrine and legal practitioners are rather sparse. Undoubtedly, however, it should be emphasised that the labelling of the advertisement must be clear enough so that the recipient has no doubts as to whether a given material published by an influencer is of an advertising nature or not. UOKiK is indeed making efforts through available channels (social media accounts, content published on the website, and perhaps in the future a code of good practice) to provide guidelines on a "soft law" basis, but considering how recent the addressed issue is and potentially how extensive (various types of advertised products, various platforms, etc.), it is difficult to capture it holistically in its entirety. Standards developed over the years in this regard in the press, radio or television unfortunately do not apply to new internet media, so it is difficult to look for simple analogies here. Below, therefore, we present a collection of advice on how to label cooperation.

Mark in the description of the photo/video/other material

This is an absolute essential that should always be applied, but it can often prove insufficient! Let’s suppose, for example, that an influencer posts a very lengthy caption alongside a photo on Instagram, in which they are promoting product X. The caption is very detailed, and the mention that this is a sponsored post appears at the very end in a single line. The average viewer will probably not even read that far, stopping at the caption, which forms an integral part of the advert. This is a flawed disclosure which, in the event of an investigation by the Office of Competition and Consumer Protection (UOKiK), could be challenged, and the post interpreted as surreptitious advertising. The very popular practice of using # (hashtags) may also be flawed. Whilst simply including ‘#ad’ or ‘#sponsoredpost’ in the description is entirely appropriate, not every hashtag’s content or placement will be suitable. The President of UOKiK himself has clearly emphasised that the content of the hashtag must be understandable to everyone and clearly visible. Therefore, simply adding ‘#ad’ (from the English word ‘advertisement’) is absolutely insufficient! And although there are no clear provisions or court rulings on this matter in Polish law or case law, the UOKiK takes a clear stance: “Properly labelled advertising content should include a hashtag such as #advertisement or #sponsoredcontent. These convey a clear message and are understandable to the audience. The hashtag #ad is not sufficient. Similarly, there may be doubts as to whether the hashtag #collaboration is sufficient. The term ‘collaboration’ can have a wide range of meanings, depending on the scope of the agreement with the advertising agency or advertiser and their influence on the influencer’s creative output, including the independence of their opinions. The hashtags #advertisement and #sponsoredcontent are unambiguous in this respect.” As can be seen from the above, #collaboration – which is probably so popular precisely because of its vague nature – may also be insufficient. Furthermore, in German case law, which of course has no legal force in Poland, but which points to a certain trajectory regarding practices that appear to be similar across different legal systems, there are rulings establishing that the term #ad alone is an insufficient designation. The labelling of certain content by a German influencer resulted in a local court deeming her actions to constitute surreptitious advertising and, consequently, an act of unfair competition under the German equivalent of Article 16 of the Act on Combating Unfair Competition. Nor can we overlook the issue of the placement of specific hashtags. It is, after all, a common practice to include numerous hashtags in a photo’s caption. This is beneficial from the influencer’s perspective, as it can help increase reach, which is always advantageous. At the same time, it creates an opportunity to include, amidst the mass of hashtags, even those that are factually correct (e.g. 1TP5Advertisement, #sponsoredcontent) in such a way that the viewer will not spot the relevant one without carefully sifting through the mass of hashtags. It should be emphasised that

Marking in the content of the material itself

It is difficult to create a universal guide in this area, so we will use specific examples.
  1. Marking in the YouTube video: A good practice in this regard will be to add a fragment (board/graphics) during editing that states that it is a sponsored video. Just like on TV - the famous "the sponsor of the program was (...)" (tongue in cheek 😉 ). You can also devote a fragment of the film to telling the camera that the material is advertising. It would also not hurt to add a fragment in the montage containing an advertisement for the visible inscription #reklama or similar. In addition, special attention should be paid to videos in which the creator tests various products. They have undoubted marketing potential, but not marking them as advertising will have disastrous consequences.
  2. Marking the photo: You can mark the client (the brand we cooperate with) in the photo - it will not be enough on its own, but combined with an appropriate description, it can complement the whole. It is also possible to place an appropriate inscription or hashtag on the photo, but this will probably disturb the overall aesthetic and will be reluctantly used by creators. Therefore, in this aspect, you need to focus on the description in great detail.
  3. Tag on instastories: When recording a video that will then be shared on instastories, it is worth adding appropriate hashtags. This is a kind of basis that should be supplemented with a verbal message to recipients that the material is an advertisement. Please remember that in this case, viewers do not have the opportunity to read the description, so what is in the description determines the effective marking of the ad should be included in the recording itself. There are two things to note! Firstly, due to the nature of Instastories, which are divided into short parts, commonly known as "tiles", it is important to remember that the appropriate hashtags should be included on all "tiles", not just the first one. Secondly, you may encounter unintentional or unfair practices where influencers use the light and font color of hashtags in such a way that they are completely invisible (white subtitles and an appropriately overexposed fragment of the background - an effect that is as striking as it is illegal). Without deciding whether these are intentional practices or not - what matters for the Office of Competition and Consumer Protection at the end of the day is achieving an effect, i.e. adequately informing the recipient, and not a purely formal addition of hashtags, which in fact was ineffective.
  4. Tag on TikTok: Videos on Tiktok, by their nature, are similar to Instastories - also short and concise. It is therefore worth adding appropriate hashtags to them. In this case, however, it is possible to add a description, so you absolutely cannot skip this element!
  5. Marking text, e.g. on Facebook/blog: Nothing is simpler than simply placing an appropriate annotation in a visible place. If the text is entirely sponsored, it will be best to do it at the beginning (never at the end!). If only a fragment, adding it before this fragment will be sufficient.
What is also crucially important, various platforms such as TikTok or Instagram provide technical features to label a post as sponsored. When this is done, an appropriate tag appears automatically. If this option is available, we also always recommend using it. It must be remembered that merely adding a single hashtag will not be sufficient! It is the influencer's responsibility to ensure that the content is properly labelled. To summarise this part, it should be noted that if, when labelling sponsored content, a male or female influencer has doubts as to whether it has been done in a way that will keep them safe from the Office of Competition and Consumer Protection (UOKiK), it is worth looking at the post from the perspective of a third party. Try to create the archetype of the "average consumer" — a standard familiar to various legal regimes — and consider whether such a recipient, without deep analysis (reading every line of the caption, analysing all the hashtags), will be able to recognise that the material is sponsored. This is not, of course, a guarantee that the action fully complies with regulations, but rather a simplification for content creators. Just recall all those well-known TV series where product placement was so obvious that it practically hit you in the eye — well, the labelling should be just as prominent. The final assessment of whether material is properly labelled will, in the event of a dispute, still rest with the relevant authorities — primarily UOKiK. In this regard, should doubts arise, the opinion of a lawyer specialising in this subject will also be helpful.

Scam, or how not to cheat your recipients

A scam, or quite simply, fraud. In the marketing industry, this term has come to be used to describe products or the advertising of products intended to mislead. This includes, for example – to quote the Office of Competition and Consumer Protection (UOKiK) – advertising non-existent promotions, concealing key product features, unjustifiably exaggerating the properties or intended use of the advertised product, or offering items that are harmful or dangerous to health. There are loads of examples of this online – slimming tights, counterfeit watches, ‘mystery boxes’ for relatively little money, which were supposed to contain shoes but turned out to contain keyrings shaped like shoes or ‘magic’ ear-cleaning sticks. These are just a few examples among a great, great many scam offers. The legal basis for penalising an influencer for advertising a scam is the already familiar Article 16(1) of the Act on Combating Unfair Competition, but in this case, point 2) will apply. “An act of unfair competition in the field of advertising is, in particular: advertising that misleads the customer and may thereby influence their decision to purchase goods or services.” So what can an influencer do to protect themselves from liability for promoting a scam, and their audience from falling for it? First and foremost, they should verify all collaborations. They can hire professionals (agencies or solicitors) for this, or handle it themselves. They should have proper discussions with those offering products for promotion, and even ask for the opportunity to test the product themselves. It’s also worth searching online for information about the product in question. If, following such ‘investigation’, the influencer is still unsure whether the product bears the hallmarks of a scam, it’s best to decline the collaboration. As the President of UOKiK himself emphasises, when it comes to combating scams, the authority checks whether content creators verify offers of commercial collaboration and how they respond when irregularities are detected, including whether they stop promoting the product or offer to compensate their followers for any losses.” He also highlights UOKiK’s expectations of them: “One must not thoughtlessly agree to dubious collaborations solely for financial gain.” “Every influencer should comply with the law when promoting a product or service and take responsibility for their actions.” In this regard – partly for entertainment and partly for educational purposes – we recommend a video recently released by the YouTuber OjWojtek, in which he illustrates the point made by Tomasz Chróstny in the excerpt quoted above: https://www.youtube.com/watch?v=nwB7g0wFH_c&t=2378s&ab_channel=ojwojtek

What to do when the Office of Competition and Consumer Protection contacts an influencer?

The most sensible course of action would, of course, be to arrange a meeting with a professional lawyer who can assess the influencer’s situation in a thorough and reliable manner. The President of the Office of Competition and Consumer Protection (UOKiK) – as it is likely to be he who will issue a request to the influencer to produce the contracts entered into, etc. – initially initiates only an investigation. This is not a punitive measure. Its aim is to clarify whether the influencer in question has breached the law through their actions. UOKiK will want to see what contracts have been entered into, what their terms were, what form they took and – if the law has been breached – who is responsible for the breach. It is therefore possible that the influencer’s client, who commissions them to advertise a particular product, may require the advertisement to take the form of a hidden advertisement. Not explicitly, of course, but the contractual provisions may prohibit the use of relevant hashtags or the labelling of sponsored content. This measure does not, of course, exempt the influencer from liability for surreptitious advertising, but extends that liability to the client as well. It is only at the next stage that the Office of Competition and Consumer Protection (UOKiK) determines whether any infringements have occurred and imposes a penalty. When UOKiK requests documents, information, contracts and other materials, there is no alternative but to simply start cooperating. If we have committed acts of unfair competition or engaged in unfair market practices, this will be uncovered sooner or later. A lack of cooperation, however – that is, failure to comply with the instructions in the summons – will simply cost us extra money. Failure to cooperate with UOKiK – that is, failing to produce documents or failing to answer the questions posed – results in a financial penalty, as a group of influencers recently discovered. Kruszwil, Marcin Dubiel, Maffashion, Paweł Malinowski, Marcin Malczyński and Marlena Sojka paid a total of 139,000 zł (Kruszwil paid the most, at 50,000 zł, whilst Sojka paid the least – 4,000 zł) for this failure to cooperate. The next stage of the proceedings involves demonstrating that no laws have been breached. In this regard, it is worth seeking the assistance of a professional lawyer – after all, taking on the Office of Competition and Consumer Protection (UOKiK), which is backed by a team of lawyers, on one’s own may prove ineffective. To summarise this section, therefore – should the UOKiK instruct an influencer to take specific actions, those actions must be undertaken and the influencer must cooperate with the authority. Failure to do so may result in a penalty, as in the case of the influencers described. At the same time, at a later stage of the proceedings – or rather as a result of them – the President of UOKiK may once again penalise the influencer – this time for unlawful conduct that was the subject of previous clarifications. We recommend that every influencer follow the instructions set out in this text, but above all, adhere to the UOKiK’s guidelines. It is worth following the Office’s website, as well as its social media channels (Instagram and Twitter), where staff post information in a very clear and accessible manner to help influencers operate lawfully. If you have any questions or would like to use the services of our law firm, please contact us!
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