Marketing, communication,
advertising, media agencies (”agencies”) and brands are constantly looking for
solutions to provide users with advertisements which overlap as much as
possible with their tastes and interests.
However, the adoption of the GDPR
leads to restrictions on the manner in which targeted advertising campaigns are
carried out, the media agencies and brands being constrained to find
alternatives.
Although the concept of “Influencer
Marketing” is not new, being used already for many years by agencies and
brands, in the last years this type of advertising has enjoyed increasing
popularity, especially due to the efficiency of advertising campaigns carried
out through influencers. Moreover, the occurrence of platforms which
intermediate the relationship between agencies/brands and influencers also contributed
to the accelerated development of this type of campaigns.
Nevertheless, considering the
impact that this type of campaigns can have on consumers, the issue arose on
how are consumers protected against abuses or practices where the main purpose
is the manipulation of consumers, and what obligations do media agencies and/or
brands which resort to this type of advertising have. Many examples can be
given of influencer marketing campaigns that barely touched the ethics and the
law.
What is Influencer Marketing and
why is it relevant?
“Influencer Marketing”
refers to those advertising campaigns carried out by agencies and/or brands by
using bloggers, vloggers or other celebrities from the online environment, who
are, according to some business KPIs, the best influencers for some specific
audiences. These campaigns are carried out, in principle, on social networks
and imply the use of these celebrities for presenting or promoting the goods
owned by the brand.
Of course, there are also situations
in which influencers act completely independently of any brands, in an
editorial context, but due to the impact that certain messages can have, this
activity may be considered equivalent with the one in which the act directly
for or on behalf of media agencies or brands.
It is important to emphasize the
fact that not any popular person is automatically also an influencer. The
essence of influencers is the fact that they can influence the public’s
perception and can alter the economic behaviour of the consumers to
which they address, which also determined more and more media agencies and
brands to recur to this type of advertising.
Without any doubt, such an
advertising mechanism has significant advantages for media agencies and brands
for several reasons:
Filtering a specific audience: Media agencies and/or brands
may direct their advertisements to a specific audience, without profiling
individuals, simply by choosing a celebrity based on the audience segments to
which such celebrities usually address. This approach brings advantages also
from a personal data protection perspective because, in principle, in such a
case, the media agencies and/or brands will not have any additional obligations
with respect to the protection of personal data, since the audience is picked
on the basis of the influencer and not by processing profiles. In other words,
the responsibility is lower and the efficiency maximum.
However, situations may arise in
which media agencies and/or brands will process personal data for the purpose
of selecting their audience, even if such campaigns are carried out through
influencers. Therefore, it is recommendable to perform an assessment on the
data protection obligations of the agency/brand, before commencing any
influencer campaign (as in the case of regular campaigns), considering
that the risks of non-compliance are significant.
The conversion is significantly
increased, because the
advertisements are often sent as personal recommendations of the influencer,
based on its personal experience, which increases its credibility as opposed to
regular advertisements. Consumers often find a role model in the influencers,
which makes them more vulnerable to abuses from them, and which may also make
them more susceptible to consider the suggestions and recommendations they are
provided with.
Considering the significant
impact that such a practice may have on consumers, the question arises: is
there a specific regulation with respect to these activities or are consumers
exposed to such a practice without having any means of protection?
What is the legal framework
applicable to influencer campaigns?
At this moment in Romania, there
is no specific legal framework which addresses this type of advertising or the
conditions and restrictions for carrying out such activities. However, in line
with the case law of the European courts (especially the German ones),
we deem that the provisions of Law no. 363/2007 against unfair practices of
traders in relation to consumers and harmonization of the provisions of the
European consumer protection legislation (“Law no. 363/2007”) are
relevant. Moreover, the Romanian Advertising Council (“RAC”), a
self-regulating organism, has issued a Code of Advertising Practice (“Code”)[1],
which addresses the concept of influence and imposes a set of general rules
regarding influencer communications, these rules being mandatory for RAC members.
Thus, according to article 4.2
from the Code, “the contractual relationship between the influencer and the
advertiser must be clearly and visibly disclosed within the
communication. The disclosure must be made for each article, post, video,
tweet, etc. at the beginning of the communication”. It is important to
emphasize that, in accordance with article 4.1 from the Code, the media
agencies and brands which use influencers are responsible for the communication
performed by them. In other words, it is mandatory for media agencies and
brands to ensure that the engaged influencers know and abide by the rules
imposed by the Code, as well as by all other legal provisions.
Furthermore, according to article
7 para. (2) from Law no. 363/2007: “It shall also be regarded as a
misleading omission when, […] a trader […] fails to identify the commercial
intent of the commercial practice if not already apparent from the context,
and where, in either case, this causes or is likely to cause the average
consumer to take a transactional decision that he would not have taken
otherwise.” Thus, in most cases, influencers omit to identify the
commercial intent of the practice, misleading the consumers with respect to the
nature of the communication. Although the consumers believe that they are in
the presence of a post with a private and personal purpose (e.g.
presenting a personal opinion or experience), its purpose is to influence and
manipulate the consumers in order to determine them to purchase a product or
service. The scope of the provisions of Law no. 363/2007 is broader, because it
also covers the situations in which there is no contractual relationship
between the influencer and the brands.
When do I become an influencer
(trader) under the law?
As also shown by the European
case law, especially that of the German courts, when an influencer exploits its
image for business purposes, it will always act as a trader and not a consumer.
Considering the harmonization at the European level of the legislation
regarding unfair practices in relation to consumers, this interpretation is
without a doubt also applicable in Romania. However, courts and authorities
from Germany, respectively Austria, failed to provide a threshold of followers
which would turn a person into an influencer. The Code also does not include
detailed criteria with respect to qualifying a person as an influencer.
Thus, the question arises: which
are the criteria which must be taken into account when distinguishing between
an influencer and a person acting exclusively for private purposes?
As mentioned above, the essence
of being qualified as an influencer is the ability to influence the
behaviour of consumers and determine them to take a transactional decision
which they would not have taken otherwise. In this respect, as long as a person
acts within the scope of its private life (i.e. when he/she addressed
exclusively to friends and/or family), the number of followers should be
irrelevant. What is important is to be able to prove, factually, that the
activity of the influencer had a decisive effect (or is susceptible of
having a decisive effect) on the behaviour of consumers, whether 100, 1,000
or 100,000.
The law on consumer protection
has the purpose to protect each individual consumer and does not only include
situations in which the trader’s activity affects a minim number of consumers.
In other words, from this point of view, it is not justified to distinguish between
regular campaigns and influencer campaigns. Of course, it remains to be seen
whether this interpretation will also be adopted by the Romanian courts of law
or whether they will set a minim necessary threshold of followers. In any case,
a media agency or a brand will not be able to claim that the respective person
does not have sufficient influence, especially since the influence they have
was the reason why they were engaged by them.
Which are the scenarios in which
advertisements must be tagged?
As mentioned in the Code, when
there is a contractual relationship between a brand/agency and an influencer,
we will always have a tagging obligation, otherwise, both the media
agency/brand and the influencer may be held liable. However, not only these
posts fall under the scope of the legal provisions.
In this respect, it is relevant
to assess the case law of European, especially that of the German courts,
because the provisions regarding unfair practices in relation to consumers have
been, mostly, harmonized at European level and therefore their reasoning is
relevant for the Romanian courts as well. As stated by the courts in Berlin[2],
not any post of an influencer will be considered a commercial activity and has
to be tagged as advertisement, but only those activities which from an
objective point of view “have the purpose of promoting the sale of goods and
services”.
When this post represents the
beliefs, ideologies or opinions of the influencer, it does not have to be
tagged as an advertisement. For example, in a case in Germany, when Vreni
Frost, a German influencer, posted a picture with her wearing certain clothing
products, referring to the companies which produced them, the court decided
that there is a legitimate purpose to inform its readers with respect to their
origin, and thus it cannot be qualified as an advertisement. Of course, she was
able to provide proof that she personally purchased the products and that they
were not received from brands.[3]
Similarly, the Austrian
Advertising Council[4]
tried to provide a set of essential criteria which have to be analyzed when
assessing whether the post of influencers has a commercial nature and thus, it
can be qualified as an advertisement. These criteria should also be taken into
account by our courts and authorities. The following should be analyzed: (i)
the editorial control which the agency or brands have over the content, and (ii)
whether there is any kind of compensation for the influencer.
Thus, in practice, it can be
distinguished between the following main situations, which are relevant from
the perspective of classifying an influencer’s posts:
An influencer is paid or rewarded
for promoting or providing positive feedback with respect to the product: in such a situation it will
always be considered advertising, with the obligation to tag such a post
accordingly. This situation is also taken into account by article 4.2 from the
Code and can also infer from the influencer’s definition from the Code. It is
important to emphasize that in such a situation, the media agency and the brand
are responsible for the influencer, in accordance with the Code;
Influencer receives goods or free
samples, but the brand does not have any expectations or control with respect
to the content: in such case, in principle, there is no obligation to tag the content.
However, when the post has a clear advertising nature (or as mentioned by
the Berlin courts, from an objective point of view have the purpose of
promoting the sale of goods and services) then these must be tagged
accordingly, even in the absence of any implication from the media agency or
the brand. In such case we can talk, in principle, of the liability of the
influencer for the violation of the legal provisions;
When the influencer buys the
goods and the posts represent the expression of its right to freedom of
expression: in such case,
in principle, there is no obligation to tag the content. As in the case above,
an objective analysis must be performed, in order to determine whether the post
does not cover, in fact, a strong advertising nature.
Also, article 7 para. (2) of Law
no. 363/2007 states that when the commercial nature of an activity is apparent
from the context, tagging the content as advertisement is not necessary. In
other words, if through the professional nature of the pictures or video
posted, the nature of the messages sent or other factual elements, it is clear
that such post has the purpose of promoting goods and services, it is not
necessary to tag such content. However, considering the fact that, currently,
more and more influencers have advanced editorial skills, providing content with
the highest standard of quality and professionalism, it will be difficult to
distinguish between the situations in which the exception applies and those in
which tagging the content is necessary. Thus, in case of doubts with respect to
this exception, it is recommendable to tag the content as an advertisement.
How should advertisements be
tagged?
According to the Code, the
contractual relationship must be “clear and visible” without any details
on what this means. More details are provided in the guide issued by the
Austrian Advertising Council, according to which the advertisements must be
tagged in such a manner that the consumer knows, from the start, that it is an
advertisement, for exempla by posting a #advertisement in front of any
post on social networks. The same reasoning applies to product placement. These
rules are in line with the case law of the German courts which stated that any
advertisement must be tagged with the corresponding mention placed in front.
Of course, the advertising nature
of the post must be obvious for the average consumer, without him being forced
to perform an assessment of the post. In this respect, putting the hashtag “#ad”
or a similar mention in a string of other hashtags was considered insufficient
by the German courts and may also be considered insufficient from the
perspective of the Romanian law. Moreover, when the post is specifically
addressed to Romanian consumers, the tagging should be done in Romanian
language, otherwise, there is a risk that consumers were not accurately
informed.
Finally, influencers and media
agencies/brands will have to comply with the provisions of Law no. 148/2000
regarding advertising (“Law no. 148/2000”) with respect to
advertisements, especially when such content is addressed to minors. Thus,
according to the provisions of Law no. 148/2000 it is prohibited to advertise
if: (i) it is subliminal; (ii) damages the respect for human dignity or
public morals; (iii) includes discrimination based on race, sex, language,
origin, social origin, ethnicity or nationality; (iv) damages the religious or
political beliefs; (v) damages the image, honor, dignity or private life of
persons; (vi) exploits superstitions, credulity or fear of persons; (vii)
damages the security of persons or incites to violence; (viii) encourages a
behavior which damages the environment; (ix) favorizes the commercialization of
goods or services which are manufactured or distributed in violation of the
legal provisions.”
Moreover, when advertisements are
addressed to minors, they may not harm them physically, morally,
intellectually, or psychologically or take advantage of their lack of
experience or credulity. Under the same lines, the Code mentions that “the
statements made by the influencers must be truthful, not misleading and
verifiable” and in case of “posts about the use of the respective
product by influencers, they are to make statements that represent their honest
opinions and personal and authentic experience regarding the product, based on
the evidence they possess, providing, where appropriate, the corresponding
testimonials.”
Conclusion
Although there is no specific
legal framework for influencer marketing, this activity must comply with the
legal provisions regarding consumer protection, especially considering that the
impact it may have is significant. Thus, it is recommendable for media agencies
and brands to analyze with utmost care the nature of the posts on social
networks, as well as to follow compliance by influencers with the legal
provisions regarding tagging, because, based on the specific circumstances, the
agency and the brand may also be sanctioned for the violation of the legal
provisions. They are also obliged to comply with the provisions regarding
consumer protection, in regard to their own activity.
Although we are not close to
having a consistent unitary national or European case law in this area, what is
important is the fact that the importance and impact of this activity have been
acknowledged and the first steps were taken towards regulating this area.
[1] Available at this link.
[2] See
the first court decision of Landgericht Berlin no. 52 O 101/18 from 24.05.2018,
respectively the appeal decision of Kammergericht Berlin no. 5 U 83/18 from
08.01.2019.
[3] Idem.
[4]
The guide in the German language is available at this link.
