Page 55 - index
P. 55
LEGISLATION
ments. It is generally governed at Federal State level. These aspects must be emphasized and taken into
According to the ‘law against unfair competition’, the consideration in the legal assessment of Influencer
intend to mislead is unfair and businesses must recog- Marketing. It remains to be seen whether jurisdiction
nize the commercial purpose of a commercial act, to recognizes and takes up these tendencies, but no one
make sure that non-disclosure doesn’t cause the con- should be surprised if, in the context of social media,
sumer to take a commercial action which would other- the term "sponsored by" is categorized as completely
wise not have been taken. This is the classic definition sufficient for the marking of advertising.
of impermissible surreptitious advertising. The aim of the
rule is, above all, the prohibition of mixing editorial and Social media users, on the other hand, would most
advertising content. The consumer should be protected probably be terribly irritated, when suddenly finding the
from believing that the influencer presents a product he/ word ‘advertising’ under a post, although it would be
she praises by conviction, even though there has been a the safest solution under the current legal situation.
trade-off. Companies and influencers otherwise risk the loss of
reputation if they do not make the advertising character
Influencers lack the labeling of their prod- clear. Particularly the ongoing discussion about the
uct placements as advertising "sponsored by" and much more stringent requirements
for corresponding rules in other countries, the topic of
For an average social media user, the impression often surreptitious advertising comes to the fore in the con-
arises that the influencer only expresses his/her own text of Influencer Marketing and is increasingly getting
experience and represents the very own opinion about a the attention of the public.
product that pleases, or just posts a photo out of interest
or a mood. This seems to lead to a mixture of editorial Companies and influencers that want to strike a bal-
and commercial, creating rather advertising content. ance should probably go for a not too obvious, but not
disguising, indication (as it is already provided by spon-
So, the question now is how the labeling of the product sored by, if this were recognized by the jurisdiction).
placements of influencers must be designed so as not to Possible examples would be "on behalf of " or
be classified as a prohibited surreptitious advertising? It "courtesy of”, or ‘supported by’ advertising or product
is a question that should concern all ‘commercial’ influ- placements.
encers as well as advertisers.
Whatever wording is used depends on the frequency of
Influencers risk claim for damages from other compa- use by influencers in the near future, but since the de-
nies, actions for an injunction and warnings. They can velopment is so novel we will probably see a certain
also be warned by consumer protection authorities and "stubbornness" of companies and influencers to use
competition authorities, which is why many influencers "sponsored by", which could actually contribute to the
started to add "#sponsored" or "#sponsoredby" under legal enforcement of this formulation.
their product placements.
Finally, the question is how and where exactly the ref-
Fact is that the main legal risk is with the influencer: Be- erence to the advertising purpose must be placed. It is
cause of the possible violations of laws and directives, necessary to ponder again on the complete loss of the
the contracts concluded between Influencer and compa- advertising effect, if the purpose is too much in the fore,
nies can be void because of misconduct or law. Thus, and the legal risk when missing to label advertising
the influencer has no legal claims against the enterprise, clearly. To a certain extent, the company that pays the
neither on payment nor on support in judicial processes, influencer should play a role, too: The more detailed
warning procedures etc. the company's requirements for product placements,
the clearer the reference to the company (in exception-
Is the term "sponsored by" sufficient to al cases, even the heading of a post). In the normal
case, however, the description in the caption should be
minimize legal risk? adequate.
The adding of "sponsored by" is not necessarily enough We will see how this is all working out. Anyway, it is
to make the advertising character of a post clear, espe- important to assume prohibited surreptitious advertising
cially when talking about countries where English isn’t only when the influencer actually receives a compensa-
the national language. However, almost all terms of the tion in the form of money, discounts or products. Influ-
social media industry (like the company names them- encers, which are simply "fans" of certain products, and
selves, e.g. Facebook, YouTube, Instagram, SnapChat) post without consideration, may be rare, but they do not
are formulated in English. Hence, the younger genera- violate the principle of the separation of editorial and
tion, that forms the target group for Influencer Marketing advertising content and thus do not fall under the prohi-
par excellence, learns terms like "like, dislike, post, chat, bition of surreptitious advertising. ◊
upload, button" parallel to the mother tongue.
By Daniela La Marca
MediaBUZZ Pte Ltd - Independant ePublisher for Asia
ments. It is generally governed at Federal State level. These aspects must be emphasized and taken into
According to the ‘law against unfair competition’, the consideration in the legal assessment of Influencer
intend to mislead is unfair and businesses must recog- Marketing. It remains to be seen whether jurisdiction
nize the commercial purpose of a commercial act, to recognizes and takes up these tendencies, but no one
make sure that non-disclosure doesn’t cause the con- should be surprised if, in the context of social media,
sumer to take a commercial action which would other- the term "sponsored by" is categorized as completely
wise not have been taken. This is the classic definition sufficient for the marking of advertising.
of impermissible surreptitious advertising. The aim of the
rule is, above all, the prohibition of mixing editorial and Social media users, on the other hand, would most
advertising content. The consumer should be protected probably be terribly irritated, when suddenly finding the
from believing that the influencer presents a product he/ word ‘advertising’ under a post, although it would be
she praises by conviction, even though there has been a the safest solution under the current legal situation.
trade-off. Companies and influencers otherwise risk the loss of
reputation if they do not make the advertising character
Influencers lack the labeling of their prod- clear. Particularly the ongoing discussion about the
uct placements as advertising "sponsored by" and much more stringent requirements
for corresponding rules in other countries, the topic of
For an average social media user, the impression often surreptitious advertising comes to the fore in the con-
arises that the influencer only expresses his/her own text of Influencer Marketing and is increasingly getting
experience and represents the very own opinion about a the attention of the public.
product that pleases, or just posts a photo out of interest
or a mood. This seems to lead to a mixture of editorial Companies and influencers that want to strike a bal-
and commercial, creating rather advertising content. ance should probably go for a not too obvious, but not
disguising, indication (as it is already provided by spon-
So, the question now is how the labeling of the product sored by, if this were recognized by the jurisdiction).
placements of influencers must be designed so as not to Possible examples would be "on behalf of " or
be classified as a prohibited surreptitious advertising? It "courtesy of”, or ‘supported by’ advertising or product
is a question that should concern all ‘commercial’ influ- placements.
encers as well as advertisers.
Whatever wording is used depends on the frequency of
Influencers risk claim for damages from other compa- use by influencers in the near future, but since the de-
nies, actions for an injunction and warnings. They can velopment is so novel we will probably see a certain
also be warned by consumer protection authorities and "stubbornness" of companies and influencers to use
competition authorities, which is why many influencers "sponsored by", which could actually contribute to the
started to add "#sponsored" or "#sponsoredby" under legal enforcement of this formulation.
their product placements.
Finally, the question is how and where exactly the ref-
Fact is that the main legal risk is with the influencer: Be- erence to the advertising purpose must be placed. It is
cause of the possible violations of laws and directives, necessary to ponder again on the complete loss of the
the contracts concluded between Influencer and compa- advertising effect, if the purpose is too much in the fore,
nies can be void because of misconduct or law. Thus, and the legal risk when missing to label advertising
the influencer has no legal claims against the enterprise, clearly. To a certain extent, the company that pays the
neither on payment nor on support in judicial processes, influencer should play a role, too: The more detailed
warning procedures etc. the company's requirements for product placements,
the clearer the reference to the company (in exception-
Is the term "sponsored by" sufficient to al cases, even the heading of a post). In the normal
case, however, the description in the caption should be
minimize legal risk? adequate.
The adding of "sponsored by" is not necessarily enough We will see how this is all working out. Anyway, it is
to make the advertising character of a post clear, espe- important to assume prohibited surreptitious advertising
cially when talking about countries where English isn’t only when the influencer actually receives a compensa-
the national language. However, almost all terms of the tion in the form of money, discounts or products. Influ-
social media industry (like the company names them- encers, which are simply "fans" of certain products, and
selves, e.g. Facebook, YouTube, Instagram, SnapChat) post without consideration, may be rare, but they do not
are formulated in English. Hence, the younger genera- violate the principle of the separation of editorial and
tion, that forms the target group for Influencer Marketing advertising content and thus do not fall under the prohi-
par excellence, learns terms like "like, dislike, post, chat, bition of surreptitious advertising. ◊
upload, button" parallel to the mother tongue.
By Daniela La Marca
MediaBUZZ Pte Ltd - Independant ePublisher for Asia
