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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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 Left to their own devices until recently, conducting activities that escaped the outdated and ossified legal framework, influencers took actions that ultimately resulted in disastrous consequences after an investigation by the Office of Competition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 of all, it is necessary to determine who an influencer is and what influencer marketing is. After all, if it is decided that the activity of a given person cannot be classified in this way, the described legal requirements do not have to apply to him.

There is no single, encyclopedic and exhaustive definition of an influencer, but it is possible to recreate the basic qualities that characterize a person considered an influencer.

Therefore, an influencer is a person who operates on the Internet, and more specifically - in broadly understood social media, has a built-in reach (recipient base) and a certain bond with his "audience". Thanks to this, it is able - as the name suggests (influence) - to influence, directly or indirectly, the decisions made by its recipients.

Influencers, as mentioned, use their reach built in social media to reach audiences. Mainly portals such as Instagram, YouTube, Twitter, Facebook, Tiktok and Snapchat are used for this purpose. Of course, the set of platforms that they can use is an open set - they can even build their reach on their own website/blog. It also doesn't matter whether acting online is the influencer's only activity or how he built his reach. Therefore, the influencer will be both Karol "Friz" Wiśniewski, the founder of the famous "Ekipa", who has been active on the Internet for years and this is the center of his interest, and Robert Lewandowski, who owes his popularity and reach to his sports, non-Internet career.

As you can easily guess, such people do not feed on the energy they get from the Internet, so they turn their reach into money. This is mainly due to cooperation with various brands whose products - or their products - are advertised by influencers. And that's what influencer marketing is - advertising or, more broadly speaking, 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 this type of cooperation depend, of course, on many factors, the main one being data on their reach. However, the scope of reciprocal services in relation to marketing services may vary - as emphasized by the President of the Office of Competition and Consumer Protection, Tomasz Chróstny: "sponsorship should be understood broadly - the payment does not have to be money, it may be another benefit, e.g. a trip, testing luxury products. Readers, listeners and viewers should be clearly informed about all such situations. This means that a large influencer will probably be satisfied with paying a high amount of money, while for a smaller one, the remuneration for advertising e.g. a restaurant on Instastories will only be a free meal.

Until recently, it seemed that influencers' marketing activities were somewhat outside the scope of existing legal regulations. However, the Office of Competition and Consumer Protection shows that motivating them to honest activities that do not harm recipients is not that difficult and, most importantly, it complies with the current legal status.

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

The main issue recently addressed by the Office of Competition and Consumer Protection is the correct marking of advertising content. The legal basis for this obligation can be found in Art. 16 of the Act of 16 April 1993 on combating unfair competition. Pursuant to the first paragraph of the above-mentioned regulation:

An act of unfair competition in the field of 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 advertising marked in point 4 of the above provision (Article 16(1)(4) of the Act) may be defined as "crypto advertising". Therefore, it is an advertisement whose aim is to encourage the recipient to buy the product, often even subliminally, and which does not give a clear impression that it is advertising in nature.

Crypto advertising is also described on the so-called "list of black practices" in the Act of August 23, 2007 on counteracting unfair market practices, according to which Art. 7 point 11: "Unfair market practices in all circumstances are the following misleading market practices: surreptitious advertising, which involves the use of journalistic content in the mass media to promote a product when the entrepreneur has paid for this promotion, and this is not clearly indicated in the content or from images or sounds easily recognizable by the consumer.

In the given provision, the term "paid" should, of course, be understood broadly, i.e. as any financial benefit obtained by the influencer. We will talk about both enrichment (payment of a certain amount as remuneration for advertising) and lack of impoverishment (free trip for advertising or a free dinner in 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 obviously illegal. According to the above-mentioned provision, it constitutes an act of unfair competition as defined in the Act on Combating Unfair Competition, which may result in both civil and criminal liability.

It should be remembered - and this needs to be clearly emphasized once again - that all content that may be a paid advertisement requires marking. This concept should be understood as broadly as possible. This means that if the influencer accepted any benefits in exchange for advertising (money, barter, exchange, promotional coupons, etc.), the material published as a result of such an agreement must be marked as advertising.

However, there are quite simple ways to avoid this responsibility. It is enough - following the example of television programs that also advertise various products - to clearly mark the cooperation. Well, what does clearly mean in this case?

The provisions do not clearly regulate this, and moreover, both the court decisions, the practice of the President of the Office of Competition and Consumer Protection, and the views of legal scholars and practitioners are quite scarce. However, it should undoubtedly be emphasized that the advertising marking must be clear enough for the recipient to have no doubts as to whether the material published by the influencer is advertising in nature or not. The Office of Competition and Consumer Protection is making efforts to provide guidelines through available channels (social media accounts, content published on the website, and perhaps in the future a code of good practice) on a "soft law" basis, but taking into account how recent the issues being raised are and the potential how extensive it is (different types of advertised products, various platforms, etc.), it is difficult to comprehensively understand it. Standards in this area developed over the years in the press, radio and television unfortunately do not apply to the new online media, so it is difficult to look for simple analogies here. Below we present a collection of tips on how to signify cooperation.

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

This is an absolute basis that should always be used, but it may often turn out to be insufficient! Let's assume that the influencer posts a very extensive description of a photo on Instagram in which he advertises product The average recipient probably won't even read to this point, limiting themselves to the description, which is an integral part of the advertisement. This is a defective marking which, in the event of an explanatory proceeding conducted by the Office of Competition and Consumer Protection, could be questioned and the post interpreted as surreptitious advertising. The very popular marking with # (hashtags) may also be defective. While including #reklama or #postsponsored in the description is perfectly appropriate, not every hashtag content and its location will be appropriate. The President of the Office of Competition and Consumer Protection himself clearly emphasized that the content of the hashtag must be understandable and visible to everyone. Therefore, adding #ad (from the English word "advertisement", i.e. "advertisement") is absolutely insufficient! And although Polish law and case law lack clear provisions and judgments in this regard, the Office of Competition and Consumer Protection has a clear position: "properly marked advertising content should contain a hashtag such as #reklama or #sponsored materials. They give a clear message and are understandable to the recipients. The hashtag #ad is not sufficient. Likewise, one may have doubts whether the hashtag #cooperation is sufficient. The concept of "cooperation" may have very different dimensions, related to the scope of the contract with an advertising agency or advertiser and their impact on the influencer's work, including the independence of his or her opinions. The hashtags #reklama and #sponsored materials are clear in this respect.”

As can be seen from the above, # cooperation - so popular, probably due to its vague nature - may also be insufficient. Moreover, in German case law, which of course has no force in Poland, but shows a certain path in terms of practices that seem to be similar in different legal systems, there are rulings stating that #ad itself is an insufficient marking. Marking certain content by an influencer from Germany resulted in the local court recognizing her actions as surreptitious advertising and, consequently, an act of unfair competition under the German equivalent of Art. 16 decree

It is also impossible to ignore the issue of the location of specific hashtags. A popular practice is to include many hashtags in the photo description. This has a beneficial effect from the influencer's point of view because it can increase reach, which is always beneficial. At the same time, it creates an opportunity to include even the correct content in the mass of hashtags (e.g. #reklama, #sponsored material) in a way that the recipient will not notice the appropriate one without reading the mass of hashtags carefully. And it should be emphasized 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 extremely important, various platforms such as TikTok or Instagram provide technical opportunities to mark a post as sponsored. Then an appropriate note appears automatically. If there is such an opportunity, we also recommend always using it.

Please remember that just adding a single hashtag will not be enough! It is the influencer's responsibility to ensure that the content is properly marked.

To sum up this part, it should be written that if, when marking sponsored content, an influencer has a problem with whether it is done in a way that will give them peace of mind from the Office of Competition and Consumer Protection, it is worth looking at this post from the perspective of a third party. Try to create a pattern of an "average consumer", i.e. a pattern known to various legal regimes, and consider whether such a recipient will be able to recognize that this material is sponsored without deep analysis (reading every line of the description, analyzing all hashtags). This is, of course, not a guarantee that this action is fully compliant with the regulations, but a certain simplification for creators. Please remember all the famous series in which product placement was so obvious that it was obvious - well, the marking should be the same.

The final assessment of whether the material is properly marked and in the event of a dispute will rest with the relevant authorities - primarily the Office of Competition and Consumer Protection. In this respect, in case of doubts, the opinion of a lawyer dealing with this topic will also be helpful.

Scam, or how not to cheat your recipients

Scam, or simply fraud. In the marketing industry, this term has come to be used to describe products or product advertising that is intended to mislead. For example, quoting the Office of Competition and Consumer Protection, we are talking about: informing about non-existent promotions, hiding important product features, unfairly exaggerating the properties or intended use of the advertised product or offering things that are harmful or hazardous to health. There are plenty of examples of this activity on the Internet - slimming tights, counterfeit watches, "mysterious packages" for relatively little money, which were supposed to contain shoes, key rings with shoes or magical ear cleansing sticks. These are all just a few of many, many scam offers.

The legal basis for punishing an influencer for advertising a scam is the already known Art. 16 section 1 of the Act, 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 therefore influence his decision to purchase a good or service."

So what can an influencer do to protect themselves from liability for advertising a scam and their recipients from buying it? First of all, verify all cooperation. You can hire professionals (agencies or lawyers) to do this, or you can do it yourself. You should conduct appropriate conversations with people offering products for advertising, and even ask for the opportunity to test the product on your own. It is also worth visiting the Internet to look for information about a given product. If, after such an "investigation", the influencer is not sure whether the product is not a scam, it is worth resigning from cooperation.

 As the President of the Office of Competition and Consumer Protection himself emphasizes, in terms of scam control, the office checks whether creators verify offers of commercial cooperation and how they behave when irregularities are detected, including whether they withdraw from advertising the product or offer to repair the damage to their followers. He also points to the expectations that the Office of Competition and Consumer Protection has towards them: "you cannot thoughtlessly decide on questionable cooperation just for financial reasons." “Every influencer should follow the law when promoting a product or service and take responsibility for their actions.”

In this aspect - partly for entertainment and partly for educational purposes, we recommend a recently released video by YouTuber OjWojtek, in which he illustrated what Tomasz Chróstny talked about in the fragment quoted above:

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

Of course, the most reasonable solution will be to arrange a meeting with a professional lawyer who will reliably and reliably assess the situation in which the influencer finds herself.

The President of the Office of Competition and Consumer Protection, because he is the one who will probably ask the influencer to present the concluded contracts, etc., initially only initiates explanatory proceedings. It is not repressive in nature. Its purpose is to clarify whether a given influencer has violated the law with his actions. The Office of Competition and Consumer Protection will want to see what contracts were concluded, what their provisions were, what their form was and - if a violation of the law occurs - who is responsible for them. Therefore, it is possible that the influencer's contractor who commissions him to advertise a given product will demand that it be a surreptitious advertisement. Of course, not explicitly, but contractual provisions may prohibit the use of appropriate hashtags or marking sponsored content. This action, of course, does not release the influencer from responsibility for surreptitious advertising, but also extends it to the client. Only at the next stage does the Office of Competition and Consumer Protection determine whether any violations have occurred and impose a penalty.

When the Office of Competition and Consumer Protection requests documents, information, contracts and more, there is nothing else to do but simply start cooperating. If we have committed acts of unfair competition or used unfair market practices, it will be revealed sooner or later. However, lack of cooperation, i.e. failure to comply with the instructions from the summons, will only cost us additional money. Failure to cooperate with the Office of Competition and Consumer Protection, i.e. failure to provide documents or answers to questions, will result in a financial penalty, as a number of influencers have recently found out. Kruszwil, Marcin Dubiel, Maffashion, Paweł Malinowski, Marcin Malczyński and Marlena Sojka paid a total of PLN 139,000. zloty. (the most in Kruszwil, as much as 50,000, the least in Sojka – 4,000) for the said lack of cooperation.

The next part of the proceedings involves proving that no legal provisions have been broken. It is worth seeking the support of a professional lawyer in this respect - after all, fighting the Office of Competition and Consumer Protection (UOKiK), which employs lawyers, may prove ineffective on your own.

To sum up this part - if the Office of Competition and Consumer Protection calls on the influencer to take specific actions, these actions should be taken and the office should cooperate with them. Action to the contrary may result in punishment, 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 the Office of Competition and Consumer Protection may once again punish the influencer - this time for illegal activities that were the subject of prior explanations.

We recommend that every influencer follow the instructions contained in the text, but above all, the guidelines of the Office of Competition and Consumer Protection. It is worth following the office's website, but also social media (Instagram and Twitter), where employees post information helpful in the legal operation of influencers in a very clear and accessible way.

If you have any questions or would like to use the services of our law firm, please contact us!

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