Recommendations of the President of the Office of Competition and Consumer Protection published! How to mark an advertisement on the Internet?

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Krzysztof Bardel|
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For several months now, information has been circulating in the legal community interested in the topic of influencer marketing that the President of the Office of Competition and Consumer Protection plans to solve the pressing problem of failure to mark or incorrect marking of advertisements by influencers. This was to happen through the so-called soft law, i.e. guidelines (guide) on marking advertisements by influencers, which indicate what criteria the President of the Office of Competition and Consumer Protection will adopt when assessing the activities of influencers. The recommendations of the President of the Office of Competition and Consumer Protection have recently been published, so in this article we focus on discussing their most fundamental issues.

We have already discussed this topic at Kłodziński Law Firm's legal blog, but before the publication of the relevant guidelines. Therefore, we first refer you to the previous article, in which we also describe the taxonomy of regulations and the conditions of an influencer's liability for violating the regulations regarding advertising labeling, i.e. the so-called surreptitious advertising: 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

In the previous blog entry, however, we could barely predict what the President of the Office of Competition and Consumer Protection would consider justified and what not. After all, the provisions on surreptitious advertising are so broad that a lot could be included in its definition. However, the recently published recommendations dispel the ambiguities and are undoubtedly an important argument for both the influencer and the President of the Office of Competition and Consumer Protection in the event of a possible dispute - after all, both parties can refer to their content to defend the effectiveness of the advertising marking or to question it.

Recommendations of the President of the Office of Competition and Consumer Protection – general information

The recommendations were published in October 2022 and present, in an accessible and clear way, recommendations for influencers who undertake commercial cooperation with various brands to advertise their products or services. Failure to clearly mark such cooperation or marking it in an incorrect manner may be treated by the President of the Office of Competition and Consumer Protection as an act of unfair competition or an unfair market practice, which for the influencer may involve, among others: with a huge financial penalty (up to 10% of the turnover achieved by him in the financial year preceding the year in which the decision was made).

The recommendations of the President of the Office of Competition and Consumer Protection consist of a total of 31 pages of very accessible text, are filled with pictures and are simplified as much as possible so that everyone, even a complete legal layman, is able to understand what the influencer's obligations are.

Definitions that do not result directly from the Act

As we wrote in our first entry on advertising labeling, many concepts in the field of influencer marketing do not have a legal definition. At the very beginning, the President of the Office of Competition and Consumer Protection developed a set of simple definitions that define given concepts. We are talking about issues such as: influencer, social media, advertising, advertising agency, advertisers and observers.

It would be pointless to quote all these definitions here - for those interested we can refer directly to the Recommendation, but the most important ones should be indicated, i.e. the influencer and advertising.

Influencer – (from English: influence) – a creator who actively runs his social media and communicates with his followers. Through its publications, it can influence their opinions, decisions and behavior. An influencer is an entrepreneur if he or she derives material benefits (not only financial) from his or her online activity and at the same time conducts an organized business activity on his or her own behalf and on a continuous basis (see Article 3 of the Act of March 6, 2018, Entrepreneurs' Law). This also applies to situations where the influencer has not registered a business activity.

Advertising - commercial communication intended to promote the sale or paid use of goods or services. Self-promotion, i.e. advertising one's own products or services, is also an advertisement (see Article 4, point 17 of the Act of December 29, 1992 on Broadcasting). Additionally, advertising is a commercial message intended to promote a brand.

Recommendations of the President of the Office of Competition and Consumer Protection – commercial cooperation

The next part of the Recommendation describes commercial cooperation, i.e. the element of influencers' activity that is a direct stimulus forcing them to mark advertisements/collaborations.

In this fragment, the President of the Office of Competition and Consumer Protection emphasizes that commercial cooperation may take various forms - both in terms of the form of concluding a contract and remuneration, but any information (advertisement) published by an influencer, which is of a commercial and not neutral nature, should be clearly marked. The content presented in this part is consistent with our predictions from the first entry, but here we also emphasize what you should pay special attention to.

First of all, it should be noted that every commercial cooperation between an advertiser and an influencer is a form of contract. However, this contract may be concluded in any form, i.e. not only "on paper", but also via instant messenger or orally. The doctrine of civil law also distinguishes implied contracts, i.e. concluded only through the implementation of a consistent purpose of the contract in the form of action of the parties, but the President of the Office of Competition and Consumer Protection does not mention such contracts. Although it seems that this form of concluding an agreement would be difficult to implement in commercial practice between an advertiser and an influencer, it should be assumed that in case of doubts on the part of the influencer, it is better to mark the given content as "commercial cooperation" than not.

As for the form of remuneration, it should be emphasized that a given cooperation will be of a commercial nature not only when the influencer receives monetary payment for it, but also any material benefit.

Importantly, however, the President of the Office of Competition and Consumer Protection indicates that not every material benefit must be marked as paid cooperation - sometimes it is enough to inform recipients that, for example, a cinema ticket was received for free. Therefore, if the advertiser does not interfere with the content published by the influencer (for example, he is not obliged to praise the cinema) or incurs additional costs (e.g. accommodation expenses, after-party, etc.), there is no need to mark the content as "commercial cooperation". The same applies to products received "for testing". If a manufacturer sends, for example, a sports outfit for a fitness influencer only for testing, there is no obligation to mark the review of such an outfit as "commercial cooperation" - it is enough to inform that you received it for free.

The recommendations of the President of the Office of Competition and Consumer Protection contain many examples (pp. 9-11) that clearly illustrate situations when an influencer is obliged to mark commercial cooperation, inform about obtaining a free material benefit, and when no additional actions are required.

At the end of this part, it is worth articulating the so-called the "golden rule" that influencers should follow. Therefore, if a creator has doubts about whether he should mark the content as "commercial cooperation", he should - "for safety" - simply mark it.

Recommendations of the President of the Office of Competition and Consumer Protection – self-promotion

Self-promotion should be understood as a specific method of advertising, because advertising a brand that belongs to an influencer. In this respect, certain obligations to mark advertising also arise, but they are not as far-reaching as in the case of "traditional" commercial cooperation - after all, in this respect there should not be too much interference with the freedom of the influencer-creator.

The recommendations of the President of the Office of Competition and Consumer Protection contain the definition of self-promotion and define it as: "a situation when an influencer runs a business or has shares in an enterprise that deals with the production (e.g. of clothes), the provision of services (e.g. dietary) or other activities (e.g. creating audio or e-books) and advertises it on its social media channels.”

As a rule, it should be assumed that self-promotion, i.e. advertising one's own brand, also requires marking. Any promotion of your own brand that aims to popularize it, increase sales or encourage consumers to buy it must be marked as self-promotion. However, it will not be necessary to present your products in a neutral way - for example, by simply wearing clothes produced by the influencer and publishing photos of them online (without encouraging purchase!). This thesis (it does not result directly from the Recommendation, but was placed in an infographic on the Office of Competition and Consumer Protection's Instagram) is, however, somewhat controversial - after all, it is the so-called indirect advertising, which in another, "classic", case requires marking. For example, if an influencer enters into an agreement with Nike that he will only use their clothes in the film, it should be marked as advertising cooperation, because the promotion of the brand itself by exposing it by the influencer is a measurable advertising benefit for them, and the influencer receives from this material benefit.

Therefore, when an influencer indirectly advertises his or her clothes in the same way (by promoting the brand by exposing it in films), in the end he or she also benefits materially in the form of increased sales and effective advertising. In our opinion, this solution is somewhat controversial because it introduces a certain inequality between entrepreneurs-advertisers (external advertiser/influencer as an advertiser), but, on the other hand, a different interpretation would impose on influencers de facto the obligation to label almost all content that uses their own products as "self-promotion". This, in turn, would be an excessive interference in their rights and freedoms - would they not be able to freely use the products they created themselves?

However, if the influencer only uses his or her image to promote someone else's brand (e.g. recently popular cereals branded with the image of individual influencers), then advertising such a product is nothing more than commercial cooperation and requires such a marking.

In terms of what should be understood as self-promotion, the Office of Competition and Consumer Protection conducted an additional information campaign on your instagram account – more information is available there.

Recommendations of the President of the Office of Competition and Consumer Protection – gifts

A typical event is a situation in which a given manufacturer sends its product to an influencer without explicitly expecting anything in return. It happens that brands send product samples (e.g. samples of cosmetics from a new line) or entire sets (e.g. a new gym set), but do not conclude any contract with the influencer. This action is aimed, firstly, at promoting the brand, drawing the influencer's attention to it, but also encouraging him to promote it informally. As a thank you, an influencer receiving such a gift may want to share information about a given product on their social media, which will have tangible benefits for the manufacturer - it will be an advertisement.

So what if there is no contract between the influencer and the manufacturer, even an implied one, and yet a given brand's product is "advertised" on social media after receiving a gift? The recommendations of the President of the Office of Competition and Consumer Protection give a quite clear answer.

Two situations should be distinguished here: (1) a given brand sends a gift to an influencer for the first time, (2) a given brand sends a gift to an influencer again/more times.

In the first case, when the influencer receives a gift for the first (and perhaps last) time, this situation does not meet the definition of commercial cooperation, so it does not require marking as advertising. However, the President of the Office of Competition and Consumer Protection requires that the influencer in such a situation indicate in the presented content that he received the product as a gift. It should be remembered that the purpose of the recommendations and regulations on the ban on surreptitious advertising is to protect consumers by clearly separating what the influencer recommends because he or she uses a given product/service and what he or she presents for other - usually financial - reasons. Therefore, it is advisable to inform recipients about the fact that the influencer is presenting a given product because he received it as a gift and it is not his private consumer choice.

The second situation, i.e. the one in which the influencer once again receives a gift from a given brand, requires marking. While at first glance the reasons for shaping these guidelines may seem unclear, after a deeper analysis it should be concluded that they have an axiological justification. Sending further gifts that the influencer presents on his social media, de facto takes the form of commercial cooperation. This situation would come down to a situation in which the influencer receives further financial benefits in exchange for promoting a given brand on their social media. It would therefore be nothing more than advertising. One should even consider the idea that an implicit (consensual) cooperation agreement would be concluded between the producer sending the gifts and the influencer - through the provision of mutual services typical of this type of legal relationship.

As follows from the above considerations, the position presented by the President of the Office of Competition and Consumer Protection is completely justified, according to which the presentation of the first gift from a given brand does not bear the hallmarks of commercial cooperation, but subsequent ones do and require marking as such.

As a side note, however, it should be noted that - according to the author of this article - sending "further gifts" should not always be considered commercial cooperation. If, for example, an influencer receives a gift from a given brand once a year, on the occasion of Christmas, it is difficult to say that presenting these products once a year is an advertising cooperation, even if it takes place several years in a row. However, strictly following the guidelines, the "next gift" condition is met and a marking of commercial cooperation is required.

Therefore, in case of doubt, it is worth consulting an experienced lawyer who will be able to assess whether the content requires marking or not.

Recommendations of the President of the Office of Competition and Consumer Protection – methods of marking advertising

From a practical point of view, this part seems to be the most important, but also the most problematic for both influencers and advertisers. Both sides are aware that recipients are often skeptical about advertising content, and the greatest "dirty" power of influencer marketing was that recipients perceived the content presented by influencers not as advertising, but as advice from a trusted and liked creator. Therefore, both advertisers and influencers ignore the obligation to label their cooperation, wanting only to fulfill minimal formalities but at the same time hide the commercial nature of the cooperation as effectively as possible. However, the President of the Office of Competition and Consumer Protection is aware of such activities and therefore clearly indicates in the recommendations that the marking method should be "readable, unambiguous and understandable to every recipient", but also "visible both to regular observers and to those who become familiar with the channel". influencer for the first time", and the marking is to be made in such a way that "followers should be able to read it at the initial stage of familiarizing themselves with the content".

This means that any attempts to merely "check off" the unpleasant obligation to mark cooperation will be considered ineffective and may result in the influencer being considered to have committed surreptitious advertising. We therefore recommend that you always follow the recommendations of the President of the Office of Competition and Consumer Protection and take the obligation to mark advertisements seriously. Below are the key issues answering the question: how to mark advertisements on the Internet?

First of all, it should be noted that each influencer should follow the guidelines indicated above, the marking must be: clear, unambiguous, understandable, visible to everyone and placed at the beginning (of the description/video/podcast, etc.).

Moreover, influencers should use the functionalities provided by the websites on which they operate. Many of them, such as Instagram or Tiktok, allow you to mark a given material as "advertising" or "commercial cooperation", regardless of including this information in the content of the description, photo, video or Instagram story. However, when using the marking enabled by the platform, you should not omit the "traditional" marking - after all, the platform's functionality may change, and sponsored material must be marked all the time, not only when it is made available. The President of the Office of Competition and Consumer Protection clearly states that the marking will not be effective solely using the functionality of the portal.

The recommendations of the President of the Office of Competition and Consumer Protection clearly state that a marking will be considered clear, legible and understandable if it is:

  • In a visible place, in a visible place, e.g. at the beginning of the description or recording;
  • Stands out from the rest of the content;
  • Written in a clear and large enough font;
  • In Polish, if the profile is run in this language;
  • Using terms clearly indicating the commercial nature of the publication.

The above calculation should therefore be the starting point for every influencer marking an advertisement.

At the same time - similarly - the President of the Office of Competition and Consumer Protection presents a short list of the most common errors in marking advertisements. Below - following the text of the recommendation - we present what NOT to do:

The marking of advertising materials may be considered illegible, ambiguous, incomprehensible, or misleading if, among others:

  • Placed in an invisible place, e.g. against the background of another inscription, after using the "more" or "see more" option, at the edge of the image;
  • In a color that blends in with the background;
  • Written in unclear or too small font, with spelling errors;
  • In a language other than Polish, provided that the profile is run in Polish;
  • Using ambiguous terms that do not indicate the commercial nature of the content, e.g. cooperation.

The marking should therefore be: at the beginning of the description, visible to followers immediately, without the need to look for it (e.g. by clicking "see more"), clearly indicating, respectively: commercial cooperation/advertising, self-promotion, gift, etc., placed in visible, easily accessible place in the photo and described in a clear way. Therefore, you should not "hide" the #reklama marking in the # marking group (e.g. #girl #photo #freetime #reklama #newshoes) or place the marking at the end of a long description (it seems that it would not be problematic to place the marking at the end of a short description that does not require expansion by the option "see more" and does not distract the recipient with its content). What is also obvious, can be marked both by # (e.g. #reklama, #paid cooperation), but also by classic text (e.g. advertising, paid cooperation). Of course, the properly displayed # is more eye-catching, but in accordance with the Recommendations of the President of the Office of Competition and Consumer Protection, both markings are equally effective.

As an example of limited practice, we can mention a situation in which the President of the Office of Competition and Consumer Protection took action to punish some influencers and Olimp (a company producing supplements for athletes) for ineffective marking of commercial cooperation. The advertiser obliged influencers to use the "#OlimpAd" marking, which is ineffective - firstly, it uses the abbreviation "ad" (from the English "advertisement", i.e. advertising), secondly, it is not legible, and thirdly, it is not easily visible and accessible, it requires a detailed search of several # markings in the description.

Finally, it is necessary to indicate the phrases themselves which will be considered effective advertising markings and which will be considered ineffective. Thus, the President of the Office of Competition and Consumer Protection assumes, for example, that the appropriate designation is:

In the field of advertising cooperation:

  • #reklama or [advertisement]
  • #advertising material or [advertising material]
  • #advertising cooperation or [cooperation
  • advertising]
  • #sponsored post or [sponsored post]
  • #sponsored content or [sponsored content]
  • #paid cooperation or [paid cooperation]

In terms of self-promotion:

  • #self-promotion or [self-promotion]
  • #autoreklama or [autoreklama]
  • #own brand or [own brand]

Regarding the gift:

  • #gift or [gift]
  • #gift or [gift]

The following are responsible for ineffective and incorrect advertising markings:

In the field of advertising cooperation:

  • #advertisement or [advertisement] – due to a marking other than in Polish;
  • #collaboration or [collaboration] - due to the designation other than in Polish;
  • #commercial or [commercial] – due to the marking other than in Polish;
  • #ad or [AD] – due to the designation other than in Polish and abbreviated;
  • #promo or [promo] – due to the abbreviation;
  • #spons or [spons] – due to the abbreviation;
  • #autopromo or [autopromo] – due to the abbreviation;
  • #rek or [rek] – due to the abbreviated designation;
  • # cooperation or [cooperation] – no indication of the paid nature of the cooperation;
  • The material was created in cooperation with... - no indication of the paid nature of the cooperation;

Finally, it should be mentioned that the entire Recommendation file is enriched with many examples and practical tips, therefore - in addition to reading this article - it is also worth reaching directly for their content. Particular attention should be paid to pages 19 to 27, where correct and incorrect ways of marking advertisements in practice are indicated.

What are the legal consequences? 

Finally, it is worth briefly outlining the legal liability to which influencers who do not mark advertisements are exposed. This can be divided into two types: administrative (before the Office of Competition and Consumer Protection) and civil (against consumers or entrepreneurs competing with them). It is pointless to discuss individual sanctions in detail here, but the most severe ones include:

  • Repairing the damage caused, which may result in an additional financial burden;
  • Making a single or multiple declaration of specific content, which may have a negative impact on the influencer's public image;
  • Cessation and removal of the effects of unlawful practice;
  • But above all: payment of a fine of up to PLN 10% of turnover – this is potentially the most severe sanction that captures the imagination of influencers.

Summary

The President of the Office of Competition and Consumer Protection showed some understanding by publishing recommendations regarding the labeling of advertisements online, while turning a blind eye to the past offenses of influencers. At the same time, it should be emphasized that now the authors no longer have anything to defend themselves, and their actions are under the special attention of the Office of Competition and Consumer Protection, which is why it is easy to make a mistake and expose yourself to financial liability. The Recommendations themselves are very helpful, but in practice there are many "borderline" cases whose assessment may require contact with a professional. Moreover, it is very important to properly structure the contract with the advertiser so as not to force the influencer into obligations that are inconsistent with the law. We deal with this and many other problems in the influencer marketing industry at the Law Firm - please contact us! We provide comprehensive influencer services: strategic consulting, conducting negotiations on behalf of the influencer, preparation and analysis of advertising contracts, as well as advice on how to label advertisements in social media.

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