August 30, 2019
Influencer marketing is a recent but increasingly popular marketing tool that conveys a company’s message to the target audience in a genuine and credible way. However, it is easy to unintentionally err to the side of hidden advertising. Kolster's IP lawyer highlights the main points from the Consumer Ombudsman’s new policy for successful influencer marketing.
Influencer marketing is about commercial collaboration between companies and various influencers, such as bloggers, with the aim of better sales or brand awareness. In return for visibility, the influencer can be offered money or perks with monetary value, such as a gift voucher or a free product or service.
“As the end product of the collaboration can be any publication from a blog post to a podcast and social media updates, it is sometimes a more effective way than traditional marketing to reach certain target groups and influence consumer attitudes and buying behaviour”, Kolster's IP lawyer says.
Even if no money directly exchanges hands in the collaboration, it is still marketing, which is subject to many laws and rules. In the spring of 2019, the Consumer Ombudsman published an updated policy on how to implement influencer marketing correctly. These seven points must now be taken into account in successful commercial collaboration.
Consumers always have the right to know if they are the target of some kind of marketing. The form and platform for publishing influencer marketing does not matter, as influencer marketing is also based on the Consumer Protection Act. Therefore, even influencer marketing “must clearly show its commercial purpose and on whose behalf marketing is implemented”.
“Consumers must recognise influencer marketing as commercial content. The company being advertised must also be clearly indicated. On Instagram, for example, simply mentioning the user account of the company is not necessarily enough to demonstrate which company is being referred to”, Kolster's IP lawyer says.
”The identifiability of advertising is particularly important in influencer marketing. Regardless of the publishing channel or content format, consumers must be able to separate the advertisement from other content at a glance. For example, blogs have a lot of content other than that related to commercial collaboration”, Kolster's IP lawyer says.
To meet the criteria for identifiability, commercial collaboration must be clearly marked and presented before any other text or content. The company being advertised must also be clearly indicated by stating the company name or product trademark.
“Special attention must be paid to identifiability on social media platforms, in particular. Hashtags alone are insufficient as they are often placed at the end of the post and are not specific enough. The requirement for clarity is emphasised, for example, in the Instagram Story feature with quickly changing images and videos”, Kolster's IP lawyer says.
Separating influencer marketing must also be borne in mind in podcasts and other audio content.
“Advertising can be separated from other content with clear and consistent sound signals, for example.”
The Consumer Ombudsman recommends that the expressions “advertisement” or “commercial collaboration” are used to signal marketing.
“Otherwise the expression may not be clear enough, leaving too much room for interpretation. The mentions must be placed before any other text or content in the post so that they are the first thing that consumers see”, Kolster's IP lawyer says.
Instead of individual content, it is becoming more and more common to establish long-term and continuous collaborations with influencers, covering multiple posts in different channels.
“Even if there are multiple posts, the same markings for an advertisement and the company being advertised must be included in each separate post and in an equally clear manner. It is not enough to mark the partnership in the first post associated with the collaboration”, Kolster's IP lawyer says.
Products or services can be provided to influencers free of charge without a separate collaboration agreement. The influencers can then decide for themselves whether they want to present the products in their content. Even in the case of free products received without asking, it is still marketing by promoting the visibility and awareness of the company.
“The influencer has received the company’s products or services in exchange for the company gaining visibility. If a product received outside a collaboration agreement appears in an influencer post, the expression ‘product received for free’, for example, must still be used in a clear manner”, Kolster's IP lawyer says.
Affiliate links are one form of influencer marketing used especially in blogs. The company can pay the influencer for sharing and presenting the link, link clicks or the purchases made through the affiliate link in question.
“The commercial collaboration must be clearly indicated in these cases as well. For example, you can say that the post ‘includes affiliate links, affiliate links marked with the symbol *’ at the beginning of the post.”
The Consumer Protection Act imposes an obligation and responsibility for the identifiability of advertising on both the company being advertised and the influencer. Both must ensure that the commercial purpose is clearly evident with no hidden advertising.
“In influencer marketing, the content of the post is implemented by the influencer rather than the company. Therefore, the company must provide the influencer with clear and precise instructions in accordance with the Consumer Protection Act on how to disclose the commercial collaboration. It is the company’s responsibility to instruct the influencer and require that the instructions are implemented”, Kolster's IP lawyer says.
If the marketed content is of particular interest to minors or the content is specifically targeted at minors, special attention must be paid to the identifiability of advertising.
“The content violates a parent’s right to parent if the post targets the child with a direct request, for example, by using the words ‘buy‘, ‘try’ or ‘obtain’. The post also cannot prompt the child to persuade his or her parents to buy a product”, Kolster's IP lawyer says.
A parent’s right to parent is also violated by posts where the product is sidelined and the main message is, for example, a game, cartoon character, giveaway toy or competition appealing to the child’s emotions.
The Council of Ethics in Advertising issues statements on good advertising practice and provides practical guidance on how influencer marketing should be implemented. Private individuals may also submit advertisements that violate the identifiability or good practice of advertising for evaluation by the Council.
“The Council’s statements are not legally binding, but a complaint issued is a strong signal that everything is not up to par with the advertising. The media is quick to report on any complaints issued, so carelessness in advertising can bring unfavourable publicity to the brand”, Kolster's IP lawyer says.
It is particularly important to review carefully with the influencer how to indicate the commercial collaboration so that the requirements for clarity are met.
”It is advisable to enter into a separate and clear agreement with the influencer on the implementation of the commercial collaboration and on the factors that affect the identifiability and clarity of advertising. The clarity of advertising, the wording used and the correct use of hashtags should be discussed so that the advertisement is sufficiently clearly distinguishable from the influencer’s other content”, Kolster's IP lawyer sums up.
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