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<\/p>\n 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. <\/strong> We have already discussed this topic at K\u0142odzi\u0144ski Law Firm's legal blog<\/a>, 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<\/a> 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.<\/p>\n The recommendations were published in October 2022 and set out, in an accessible and clear manner, guidelines for influencers who enter into commercial partnerships with various brands to promote their products or services. Failure to clearly label such a collaboration, or labelling it incorrectly, may be treated by the President of the Office of Competition and Consumer Protection (UOKiK) as an act of unfair competition or an unfair market practice, which for an influencer may entail, amongst other things, a huge financial penalty (up to 10% of the turnover achieved by them 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 (UOKiK) comprise a total of 31 pages of very accessible text; they are full of illustrations and have been simplified as much as possible so that anyone, even a complete legal layman, can understand what an influencer\u2019s obligations are.<\/p>\n As we wrote in our first post on advertising disclosure, many terms from influencer marketing do not have a legal definition. Therefore, at the very beginning, the President of UOKiK developed a set of simple definitions that define these terms. We are talking about issues such as: influencer, social media, advertising, advertising agency, advertiser and followers. It would be pointless to quote all these definitions here \u2013 those interested we can refer directly to the Recommendation<\/span><\/a>, but the most important ones should be indicated, i.e. the influencer and advertising.<\/p>\n Influencer \u2013 (from the English word \"influence\") \u2013 a creator who actively manages their social media and communicates with their followers. Through their publications, they can influence their followers' opinions, decisions, or behaviours. An influencer is an entrepreneur if they derive material benefits (not just financial) from their online activity and simultaneously conduct an organised business activity in their own name and on a continuous basis (see Article 3 of the Act of 6 March 2018, Entrepreneurs' Law). This also applies when the influencer has not registered their business activity. Advertisement \u2013 a commercial message aimed at promoting the sale or paid use of goods or services. Self-promotion, i.e., advertising one's own products or services, is also considered an advertisement (see Article 4 point 17 of the Act of 29 December 1992 on Radio and Television). Furthermore, a commercial message aimed at promoting a brand is also considered an advertisement.<\/p>\n The next part of the Recommendations characterises commercial collaborations, meaning that element of an influencer's activity which is the direct incentive compelling them to label advertisements\/collaborations. The President of UOKiK emphasises in this section that commercial collaborations can take various forms \u2013 both in terms of the contract agreement and remuneration. However, any information (advertisement) published by an influencer which is commercial in nature, rather than neutral, in any way, should be clearly labelled. The content presented in this section aligns with our predictions from the first post. Nevertheless, let us also highlight here what should be paid particular attention to. First and foremost, it should be noted that any commercial collaboration between an advertiser and an influencer is a form of contract.<\/p>\n However, this agreement can be concluded in any form, not only \"on paper,\" but also via instant messaging or orally. In civil law doctrine, implied agreements are also distinguished, i.e. those concluded solely through the fulfilment of the agreed purpose of the agreement through the parties' actions, but the President of UOKiK does not mention them. Although it seems that such a form of agreement would be difficult to implement in commercial practice between an advertiser and an influencer, it should be assumed that in case of doubt on the part of the influencer, it is better to mark such content as \"commercial cooperation\" than not to.<\/p>\n Regarding remuneration, it should be emphasised that cooperation will be commercial not only when the influencer receives monetary payment for it, but any material benefit. Importantly, however, the President of UOKiK points out that not every material benefit must be marked as paid cooperation \u2013 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 (there is no obligation, for example, to praise the cinema), nor incurs additional costs (e.g. accommodation expenses, after-parties, etc.), then there is no need to mark such content as \"commercial cooperation\". The same applies to products received \"for testing\". If the manufacturer sends, for example, sports attire for a fitness influencer only for testing, there is no obligation to mark the review of such attire as \"commercial cooperation\" \u2013 it is enough to inform that it was received for free. The President of UOKiK's recommendations contain many examples (pp. 9-11) that clearly illustrate situations where an influencer is obliged to mark commercial cooperation, inform about obtaining a free material benefit, or when no additional action is required. Finally, in this section, it is worth articulating the so-called \"golden rule\" that influencers should follow. If a creator has doubts as to whether they should mark content as \"commercial cooperation\", they should \u2013 \"for safety\" \u2013 simply mark it.<\/p>\n Self-promotion should be understood as a specific type of advertising, as it is the advertising of a brand that belongs to the influencer. In this regard, certain advertising marking obligations also arise, but they are not as extensive as in the case of \"traditional\" commercial cooperation \u2013 after all, to this extent, one should not excessively interfere with the freedom of the influencer-creator. The recommendations of the President of UOKiK contain a definition of self-promotion and define it as: \"a situation where an influencer conducts business activity or holds shares in an enterprise that deals with production (e.g. clothing), providing services (e.g. dietary) or other activities (e.g. creating audio or e-books) and advertises them on their social media channels\". As a rule, therefore, it should be considered that self-promotion, i.e. advertising one's own brand, also requires marking.<\/p>\n Any promotion of one's own brand, which aims to popularise it, increase sales or encourage consumers to buy, requires labelling as self-promotion<\/u>. 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.<\/p>\n 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<\/em> the obligation to label almost all content in which they use their own products as \u201cself-promotion\u201d. This, in turn, would be excessive interference with their rights and freedoms \u2013 would they be unable to freely use products created by themselves? However, if an influencer merely allows their image to be used for the promotion of another brand (e.g. the currently popular cereals branded with the image of individual influencers), then advertising such a product is nothing more than a commercial cooperation and requires such labelling. In relation to what should be understood as self-promotion, UOKiK conducted an additional information campaign. on your instagram account<\/span><\/a> \u2013 more information is available there.<\/p>\n A typical event is considered to be a situation where a given manufacturer sends their product to an influencer, while not expecting anything in return \u2013 explicitly. This is because brands sometimes send product samples (e.g. samples of cosmetics from a new line) or entire sets (e.g. a new home gym equipment set), but have no agreement with the influencer. The purpose of such an action is, firstly, to promote the brand, to attract the influencer's attention to it, but also to encourage them to promote it informally. An influencer who receives such a gift, as a token of thanks, may want to share information about the product on their social media, which will result in tangible benefits for the manufacturer \u2013 as it will be advertising. So, what about a situation where there is no agreement, not even an implied one, between the influencer and the manufacturer, and yet the product of a given brand is \"advertised\" on social media after receiving the gift? The recommendations of the President of UOKiK provide a rather unambiguous answer.<\/p>\n Two situations should be highlighted here: (1) a brand sends a gift to an influencer for the first time, (2) a brand sends a gift to an influencer for a subsequent time\/times. In the first case, when an influencer receives a gift for the first (and possibly last) time, this situation does not meet the definition of a commercial collaboration, so it does not require labelling as an advertisement. However, the President of UOKiK requires the influencer to indicate in the presented content that the product was received as a gift. It should be remembered that the aim of the implemented recommendations and regulations on the prohibition of hidden advertising is to protect consumers by clearly distinguishing what an influencer recommends because they themselves use the product\/service, and what they present for other \u2013 usually financial \u2013 reasons. Therefore, it is purposeful to inform recipients about the fact that the influencer is presenting a given product because they received it as a gift, and it is not their private consumer choice.<\/p>\n 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<\/em> takes the form of commercial cooperation. This situation would amount to a state in which the influencer receives further financial benefits in exchange for promoting a given brand on their social media. It would therefore be nothing other than advertising.<\/p>\n It would even be worth considering the concept that an implied (consensual) cooperation agreement is concluded between the producer sending gifts and the influencer \u2013 through the exchange of mutual benefits characteristic of this type of legal relationship. As follows from the above considerations, the position presented by the President of UOKiK is entirely 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 as such, require labelling. Incidentally, however, it should be pointed out that \u2013 according to the author of this article \u2013 the sending of \"subsequent gifts\" should not always be considered commercial cooperation. For 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 of an advertising cooperation nature, even if it has taken place for several years in a row. However, adhering strictly to the guidelines, the premise of a \"subsequent gift\" is met, and labelling of commercial cooperation is required. Therefore, in case of doubt, it is worth consulting an experienced lawyer who will be able to assess whether certain content requires labelling or not.<\/p>\n From a practical standpoint, this part seems to be the most important, but also the most problematic for both influencers and advertisers. Both sides are aware that audiences are often sceptical of advertising content, and the greatest \"dirty\" strength of influencer marketing was that audiences perceived content presented by influencers not as advertising, but as advice from a trusted and liked creator. Therefore, both advertisers and influencers treat the obligation to disclose collaborations carelessly, wanting only to fulfil minimal formalities, but at the same time to conceal the commercial nature of the collaboration as effectively as possible.<\/p>\n The President of UOKiK is, however, aware of such actions and therefore explicitly states in their recommendations that the method of marking should be \"legible, unambiguous, and understandable to every recipient\", but also \"visible to both regular followers and those who are encountering the influencer's channel for the first time\", and furthermore, the marking should be done in such a way that \"followers should be able to familiarise themselves with it at the initial stage of familiarising themselves with the content\". This means that any attempts to merely \"tick the box\" of the unpleasant obligation to mark cooperation will be considered ineffective marking and may lead to the conclusion that the influencer has engaged in hidden advertising. We therefore recommend that you always follow the recommendations of the President of UOKiK and take the obligation to mark advertisements seriously.<\/p>\n Below are the key issues that answer the question: how to mark online advertisements? First and foremost, it should be noted that every 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.). Furthermore, influencers should use the functionalities provided by the online platforms on which they operate. Many of them, such as Instagram or TikTok, allow you to mark a given piece of content as \"advertisement\" or \"commercial cooperation\", in addition to including this information in the description, photo, video, or Instastory itself. However, when using the platform's marking feature, you should not omit the \"traditional\" one \u2013 after all, the platform's functionality may change, and sponsored content must be marked at all times, not just at the moment it is published. The President of UOKiK also explicitly states that marking solely by using the platform's functionality will not be effective. The President of UOKiK's recommendations clearly state that a marking will be considered clear, legible, and understandable if it is:<\/p>\n The above list should therefore be the starting point for every influencer marking advertising. At the same time, in a similar vein, the President of UOKiK presents a summarised list of the most common errors in marking advertisements. Below, based on the recommendation text, we set out what NOT to do: The marking of advertising materials may be considered illegible, ambiguous, incomprehensible, and therefore misleading, if it is, among other things:<\/p>\n The label should therefore appear: at the start of the description, immediately visible to followers without them having to search for it (e.g. by clicking the \u2018see more\u2019 option), clearly indicating, as appropriate: commercial collaboration\/advertisement, self-promotion, gift, etc., placed in a visible, easily accessible spot on the photo and described in a legible manner. The \u2018#reklama\u2019 label should therefore not be \u2018hidden\u2019 within a group of # labels (e.g. #girl #photo #freetime #reklama #newshoes) or place the tags at the end of a long description (it would not seem to be a problem to place the tag at the end of a short description that does not require expanding via the \u2018see more\u2019 option and does not distract the reader with its content). It is also clear that such labelling can be done using either # (e.g. #advertisement, #paidpartnership) or standard text (e.g. advertisement, paid partnership). Naturally, a properly highlighted # is more eye-catching, but according to the Recommendations of the President of the Office of Competition and Consumer Protection (UOKiK), both labels are equally effective. As an example from what is as yet limited practice, one can cite a situation in which the President of the Office of Competition and Consumer Protection (UOKiK) took action to penalise certain influencers and the company Olimp (a manufacturer of sports supplements) for ineffective labelling of commercial collaborations. The advertiser required the influencers to use the label \u2018#OlimpAd\u2019, which is ineffective \u2013 firstly, it uses the abbreviation \u2018ad\u2019 (from the English \u2018advertisement\u2019); secondly, it is not legible, and thirdly, it is not easily visible or accessible, as it requires a detailed search through several \u2018#\u2019 labels in the description. Finally, it is necessary to specify which formulations will be considered effective labelling of advertising and which will be deemed ineffective. Accordingly, the President of the Office of Competition and Consumer Protection (UOKiK) accepts, for example, the following as appropriate labelling: With regard to advertising cooperation:<\/p>\n In terms of self-promotion:<\/p>\n Regarding the gift:<\/p>\n For ineffective and incorrect advertising labels, the following are indicated: In the scope of advertising cooperation:<\/p>\n 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<\/span><\/a>. Particular attention should be paid to pages 19 to 27, where correct and incorrect ways of marking advertisements in practice are indicated.<\/p>\n 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:<\/p>\n The President of UOKiK has shown some leniency by publishing recommendations on advertising disclosure online, while turning a blind eye to past transgressions by influencers. At the same time, it should be emphasised that creators now have no defence, and their activities are under particular scrutiny from UOKiK. Therefore, it is easy to make a mistake and incur financial liability. The recommendations themselves are very helpful, but in practice, many \"borderline\" cases arise, the assessment of which may require contact with a professional. Furthermore, it is very important to correctly structure the contract with the advertiser so as not to burden the influencer with commitments that are contrary to legal regulations.<\/p>\n We deal with this and many other issues from the influencer marketing industry at the Law Firm \u2013 please contact us<\/span><\/a>! 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.<\/p>\n\n\n\ud83d\udccb Contents<\/b><\/summary>\n
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Recommendations of the President of the Office of Competition and Consumer Protection \u2013 general information <\/strong><\/h3>\n
Definitions that do not result directly from the Act<\/strong><\/h3>\n
Recommendations of the President of the Office of Competition and Consumer Protection \u2013 commercial cooperation <\/strong><\/h3>\n
Recommendations of the President of the Office of Competition and Consumer Protection \u2013 self-promotion <\/strong><\/h3>\n
Recommendations of the President of the Office of Competition and Consumer Protection \u2013 gifts <\/strong><\/h3>\n
Recommendations of the President of the Office of Competition and Consumer Protection \u2013 methods of marking advertising <\/strong><\/h3>\n
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What are the legal consequences?\u00a0<\/strong><\/h3>\n
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Summary <\/strong><\/h3>\n