The Danish Consumer Ombudsman has just issued revised recommendations for influencers, such as bloggers and YouTubers, to help them comply with the prohibition against hidden advertising in connection with their social media activities, etc.
Hidden advertising may mislead consumers and, consequently, it has been a long-standing requirement that, when marketing products via their channels, such as blogs or social media profiles, influencers must make a clear statement about this. The Consumer Ombudsman has now issued a revised version of her recommendations for influencers. This is, among other things, a consequence of the prohibition against hidden advertising laid down in the Danish Marketing Practices Act (markedsføringsloven) being changed in connection with the new Marketing Practices Act, which entered into force on 1 July 2017. In the old version of the Act, hidden advertising was only an issue if an agreement had been entered into between the company being exposed and the party in charge of the exposure. This requirement no longer applies. What is decisive, however, is whether a “commercial intention” exists, and this is potentially a very broad concept.
The Consumer Ombudsman’s recommendations The Consumer Ombudsman’s recommendations for influencers include, among other things:
- If a company enters into an agreement with an influencer, where the influencer shall mention the company or its product in any way, it must be clearly indicated that such activity constitutes advertising and who the advertisement is for. This applies irrespective of whether the agreement is written, oral or implied.
- It is up to the influencer to decide how the advertisement is indicated. The only requirement is that it must be clear to the recipients that they are being exposed to advertising when they see the content in question.
- As a general rule, it will suffice if the influencer uses the word “commercial” or “advertisement” in the posting of a picture or in a video or at the outset of a text.
- Use of expressions, such as “in cooperation with”, “affiliate agreement”, “sponsored”, "spons" or "ad" or tagging of the company’s name or profile in a picture will not be sufficient.
- If a company sends a gift to an influencer, it must be clearly stated that the product is a gift from the company when the product is mentioned. However, this does not apply to reviewers of culture events as the Consumer Ombudsman believes that a long-standing tradition exists for critical reviews of culture events in the printed media.
- If a company sends a gift to an influencer who is under the age of 18, this may be contrary to good marketing practices depending on the age of the influencer, the target group, as well as whether the company has had prior contact with the influencer’s parents.
The Consumer Ombudsman will continue to adjust the recommendations on an ongoing basis taking into account the development in media, marketing methods, ways of indicating advertisements as well as the recipients’ understanding of such indications of marketing content. Comments by Bech-Bruun Violation of the rules of the Marketing Practices Act on hidden advertising may result in fines for the company, the influencer and the PR firm, if any, or other intermediaries. Consequently, we recommend that companies entering into commercial relationships have very clear agreements with influencers. Such agreements should as a minimum contain requirements that, in connection with any kind of advertisement for or exposure of the company or the company’s products via social media or a blog, it must be clearly indicated that the post in question constitutes an advertisement and that the influencer has been informed about the applicable rules.
You are also welcome to contact us if you want to learn more about the rules governing hidden advertising and their importance to your company's marketing and cooperation with bloggers and other influencers.