Marketing in social media by the use of influencers has increased significantly in recent years, both internationally and in Sweden. In Sweden there has however, been some uncertainty about how the rules of marketing should apply in this new social media era.
Recently, the Swedish Patent and Market Court (PMD) passed a judgment in the case between the Consumer Ombudsman and Alexandra Media Sweden AB (Alexandra Media), with the well-known Swedish influencer Alexandra ”Kissie” Nilsson as its representative and Tourn Media AB (Tourn Media) that provides a platform for influencer marketing. The judgment addresses the question of how marketing on blogs and Instagram should be addressed. How clearly must it be stated that content posted on social media contains marketing and what responsibility does an influencer and an advertising network have respectively?
The case involved two blog posts and one Instagram post that concerned a commercial collaboration between Alexandra Media and Mobilåtervinning i Sverige AB with a promotion for “Mobilpengar.se” and featured promotional markings such as “in cooperation with” and “#collaboration” and links to Mobilpengar.se. The first blog post consisted of a headline, six lines of text and three photos, with the same font and layout as other posts on the blog, as well as a statement that the post is "in collaboration with" placed at the end of the post. The other blog post, which had been updated after contact with the Swedish Consumer Agency, included the addition of "sponsored post" marked with a pink-colored list below the heading that ran across the screen and an explanation under the last photo image that "The post is a collaboration with Mobilpengar.se". The Instagram post consisted of a photo and six lines of text that ended with "#collaboration".
According to the PMD, the attention of the average consumer in this case is higher than for consumers in general when it comes to understanding whether posts in social media constitute marketing or not. However, with regard to the first blog post and the Instagram post, the Court considered that the promotional mark had neither been given a clear design nor placed in a prominent position. Thus, it did not appear with sufficient clarity, i.e. already at a volatile contact, that the posts were advertisements. However, as regards the second blog post, the Court considered that it was sufficiently clear, even at a volatile contact, that it was an advertisement and who the advertiser was.
The Court also found that Mobilåtervinning was the trader whose marketing was found to be unfair and, consequently, responsible for the marketing material. Alexandra Media was considered to be responsible for complicity in the unfair marketing while Tourn Media, which to a certain extent contributed to the marketing but had no control over the final design or publication of the posts, was not held responsible for complicity in the marketing.