While conducting activities on social media, it is important to remember existing laws that regulate not only offline but also online actions. This is a painful lesson that influencers learn when they face charges related to illegal advertising from prosecutors, and penalties from the President of the Office of Competition and Consumer Protection (UOKiK) for hidden advertising and misleading consumers.
The regulations governing the presentation and advertising of products and services, as well as the Act on Counteracting Unfair Market Practices, are fully applicable in the digital world. Moreover, from the perspective of criminal law, the internet is treated as a public domain. This fact is often overlooked not only by influencers but also by companies outsourcing advertising for their products or services.
Alcohol Advertising – Not So Clear
While beer promotion might seem common, Polish law imposes strict limits on it that are worth considering when planning advertising campaigns for such products. Moreover, even non-alcoholic beer advertising may be subject to similar restrictions if it alludes to popular alcoholic brands by name or appearance.
The Alcohol Act contains a ban on indirect advertising, encompassing not only products but also the activities of alcohol producers. These limitations also apply to the advertising of products and services that in any way refer to alcoholic beverages, their names, trademarks, or packaging. This ban extends to the promotion of companies that use alcohol-associated symbols in their advertising.
Advertising for stronger alcohols is completely prohibited, and regulations ban not only direct advertising but also essentially all promotional activities that may be associated with strong alcohol.
Hidden Advertising – A Trap for the Unaware
Even if the subject of the advertisement is not products mentioned in the Alcohol Act, it is important to remember the general principles of presentation and advertising arising from the Act on Counteracting Unfair Market Practices. It is crucial to avoid hidden advertising and misleading consumers.
According to the European Commission Guidelines on the interpretation of Directive 2005/29/EC, commercial communication should be clear and understandable to the consumer, regardless of the medium through which it is executed. It is important to consider the context, location, schedule, duration, language, target group, and other factors.
Advertisements should be marked visibly so that the average consumer, especially the more vulnerable ones, can unequivocally recognize their nature. Insufficient marking of advertisements may be considered a violation of regulations. Examples of such violations include marking only the entrepreneur without clearly indicating that it is an advertisement, or placing hashtags at the end of a lengthy statement, which requires the user to perform additional actions, such as clicking on a “learn more” link.
To properly mark advertisements, it is worth following the recommendations of the President of UOKiK contained in the Recommendations from September 2022. Suggested terms are: “advertising”, “sponsored material”, “paid cooperation”. Hashtags such as #sponsoredpost, #sponsoredmaterial, #advertisingcooperation, #advertising and #advertisingmaterial are also recommended in the “Influencer Marketing Guide” published by the Association of Internet Industry Employers IAB Poland in October 2021.
Omnibus Directive
When conducting activities on the Internet, it is also necessary to consider, among others, regulations implementing the so-called Omnibus Directive. New regulations, as of 2023, have amended, among others, the Act on Prices, the Consumer Rights Act, and the Act on Counteracting Unfair Market Practices.
Obligations include the requirement to verify consumer opinions and inform them about the methods of this verification. This applies not only to sellers but also to other entrepreneurs enabling the publication of opinions about products, such as marketing agencies. Influencers should also ensure appropriate procedures as they act on behalf of the entrepreneur whose products or services they promote.
Therefore, when providing the ability to add opinions about products and services, it is necessary to verify whether they come from people who have purchased the product or used the services. It is also necessary to publish both positive and negative opinions.
Regulations also apply to opinions that refer not so much to the products and their characteristics as to the characteristics of entrepreneurs and the quality of services they provide, such as quality, reliability, or speed of product delivery. They also include practices related to fake followers, reactions, and views.
When informing about a price reduction, there is an obligation to indicate as the reference price the lowest price of the product, which was valid 30 days before the reduction. This obligation applies to every entrepreneur who informs about the reduction, excluding prices in trade between individuals.
Summary
The above examples are just a fraction of possible restrictions – advertising regulations also include, for example, medical devices. Depending on the subject of the order (or the nature of one’s own business), it is worth verifying which regulations govern the presentation and advertising of specific products and services. Internet activity, conducted on social media, blogs, or websites, is not detached from applicable law.
In the digital age, more and more ads reach consumers through online channels. Supervisory authorities are aware of this and conduct numerous monitoring activities. Consumers are also becoming increasingly aware of their rights and have tools to report unfair advertising practices. Lack of professional analysis of the legal aspects of an advertising campaign can lead to serious legal consequences and adversely affect the image.
[1] Act of October 26, 1982 on upbringing in sobriety and counteracting alcoholism (consolidated text: Journal of Laws from 2021, item 1119 as amended)
[2] Commission Notice – Guidelines on the interpretation and application of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market (OJ. UE. C 2021 No. 526, p. 1)
[3] Recommendations of the President of UOKiK on marking advertising content by influencers in social media #OznaczamReklamy [online:] https://uokik.gov.pl/download.php?plik=26684 [access: 3.09.24]
[4] Association of Internet Industry Employers IAB Poland, “Influencer Marketing Guide”, October 2021, [online]: https://www.iab.org.pl/wp-content/uploads/2021/10/INFLUENCER-MARKETING_poradnik-IAB-Polska-2021.pdf [access: 3.09.24]
[5] Directive of the European Parliament and of the Council (EU) 2019/2161 dated November 27, 2019 amending Council Directive 93/13/EEC and Directives of the European Parliament and of the Council 98/6/EC, 2005/29/EC, and 2011/83/EU, with regard to better enforcement and modernization of Union consumer protection rules. Act of May 30, 2014 on consumer rights (consolidated text: Journal of Laws from 2020, item 287 as amended)
[6] Act of May 9, 2014 on informing about the prices of goods and services (consolidated text: Journal of Laws from 2023, item 168)
[7] Act of May 30, 2014 on consumer rights (consolidated text: Journal of Laws from 2020, item 287 as amended)
[8] Act of August 23, 2007 on counteracting unfair market practices (consolidated text: Journal of Laws from 2023, item 845)
Author: legal advisor Edyta Oleszczuk-Romańska, Associate at the Chałas & Partners Law Firm
Source: https://managerplus.pl/prawo-w-mediach-spolecznosciowych-reklama-kryptoreklama-i-odpowiedzialnosc-influencerow-79544
