Influencer marketing in social media

(2019)

The purpose of these guidelines is to instruct companies and influencers on how commercial cooperation should be communicated to consumers in targeted influencer marketing in accordance with the Consumer Protection Act.

Influencer marketing is commercial cooperation between companies and influencers whose goal is to promote the sale of company products or raise their brand profile. Commercial cooperation can be established by, for example, the company and influencer making an agreement to produce content involving the company’s products.

The end product of influencer marketing might be a video, audio or photographic presentation or blog entry published by the influencer that deals with the company or its products. The same regulations for the recognisability of advertising also apply to acting as a brand ambassador as do for influencer marketing.

The influencer might receive compensation for their marketing efforts from the company in the form of money or a cash-equivalent benefit, such as clothing, a gift card or trip. Even when the compensation is not money, this is still a question of marketing.

Recognisability of advertising is subject to the Consumer Protection Act. The consumer has the right to know when someone is trying to influence them for a commercial purpose.

The guidelines are based on valid legislation and its preparatory work, legal praxis and the Consumer Ombudsman’s oversight decisions.

Recognisability of marketing
Who is responsible for labelling?
Labelling influencer marketing
3.1 Principle rule
3.2 Products received without a cooperation agreement
3.3 Advertising links
3.4 Examples
3.4.1 Instagram and Instagram Story
3.4.2 YouTube
3.4.3 Blog
3.4.4 Podcast
Minors as a target group and marketing to minors
Legislation and legal praxis

1. Recognisability of marketing

There is no single all-encompassing definition of what constitutes advertising, marketing communications and marketing, which are often used interchangeably. In these guidelines, the above terms refer to measures a company takes in an effort to promote its sales or raise the profile of its brand.

Advertisements must be easily recognisable as such, regardless of the method of presentation or advertising channel.

The requirements applicable to the recognisability of advertising also apply to influencer marketing regardless of the presentation method.

2. Who is responsible for labelling?

The recognisability of advertising requires that cooperation be clearly labelled.

Both the company and the influencer are obligated to ensure that the commercial purpose of influencer marketing is clearly stated and that no subliminal advertising is being practiced. Marketing must be distinguished from other content to ensure that the consumer knows when given content involves commercial influence.

The company engaged in influencer marketing is, under the Consumer Protection Act, responsible for stating the commercial nature of the cooperation, regardless of whether the commercial cooperation is being carried out with a professional influencer or a non-professional one. The company is always responsible for its marketing, regardless of the party it chooses to handle its marketing.

In practice, the company is fulfilling its obligation regarding the recognisability of advertising when it sets guidelines and requires the influencer to refrain from engaging in subliminal advertising.

The advertiser may not use its employees to advertise its products in any way, shape or form posing as a private person.

A professional influencer is, under the Consumer Protection Act, responsible for stating the commercial nature of cooperation in the same manner as a company making use of influencer marketing. In these guidelines, a professional influencer refers to an individual for whom influencing is their primary occupation.

A non-professional influencer refers to a consumer for whom content production for social media is a leisure time activity and not an occupation. In this case, the activities carried out by the influencer are not subject to the Consumer Protection Act or the authority of the Consumer Ombudsman. Despite this, the labelling of advertising is vital, because followers will not otherwise be able to avoid subliminal advertising.

3. Labelling influencer marketing

3.1 Principle rule

Under Chapter 2, section 4 of the Consumer Protection Act, marketing must clearly indicate its commercial purpose and on whose behalf it is being carried out. The rule is the same regardless of what media and what methods are being used for marketing.

In some cases, a company’s official name is not used in consumer marketing, with another commercial name (e.g. a trademark) more widely recognised by consumer being used instead. In such cases, a commercial name other than the company’s official name may be used in publications to indicate for whom the marketing is being carried out.

The principle rule of influencer marketing is that it must be clearly stated at the beginning of publications

that it is an advertisement
for a company or other recognisable commercial name (e.g. a trademark).

If the publications include marketing for several products, the name or other commercial name of all companies advertising must be stated clearly at the beginning of the publications.

If the company and influencer have agreed that the cooperation will encompass several publications, labelling must be included on each publication, not just the first one.

The Consumer Ombudsman recommends that these publications be labelled with the term “advertisement”. Alternatively, the term “commercial cooperation” can be used. Thus, the labelling can be presented in the following format:

Advertisement with [Company] OR Advertisement with [Trademark] For example, Advertisement with the Finnish Competition and Consumer Authority
Includes an advert for [Company] OR Includes an advert for [Trademark]
Includes adverts for [Company, Company, …] OR Includes adverts for [Trademark, Trademark, …]

Commercial cooperation with [Company] OR Commercial cooperation with [Trademark] For example, Commercial cooperation with Finnish Competition and Consumer Authority
Commercial cooperation: [Company] OR Commercial cooperation: [Trademark]
Commercial cooperation: [Company, Company, …] OR Commercial cooperation: [Trademark, Trademark, …]

3.2 Products received without a cooperation agreement

The actual cooperation is not always agreed upon – a company may send an influencer their products or invitations to various events without being asked to do so in an effort to have them presented in the influencer’s channels. Even here, the company’s aim is generally to make its product or service available for marketing purposes.

The influencer must clearly state whether the product being presented in the influencer’s content was received without being asked by the company, even if there is no actual cooperation agreement.

The Consumer Ombudsman recommends that the influencer states this at the very beginning of a publication, such as by using the phrase “gifted free product”.

Stating that a product has been gifted is enough, provided that

the product is appearing in the channel for the first time
the product has essential relevance to the publication (e.g. the product is being expressly discussed in the publication)

Ambiguous expressions, such as ”some of the products received through [Instagram, etc.]” or ”product X ended up in my mailbox”, may not be used, because there is no way to know if any compensation from a company was received for the products.

3.3 Advertising links

Commercial cooperation must be clearly stated in marketing efforts where a company pays the influencer for such things as sharing a link, the number of click on the shared link and products purchased after clicking on the link (advertising links).

If a publication includes advertising links (i.e. affiliate links), the beginning of the publication must clearly state, for example, “contains advertising links – advertising links are marked by an *”

The * must be placed in front of the advertising links. Other clearly graphic symbols like the * may be used, provided that the symbol stands out and is easily identifiable, and the influencer always uses the same symbol.

3.4 Examples

Below are guidelines for labelling advertisements on the most common social media platforms. These guidelines are intended to serve as examples of video, photographic, audio and text-based platforms. Below are guidelines for labelling advertisements on the most common social media platforms. These guidelines are intended to serve as examples of video, photographic, audio and text-based platforms.

Labelling methods should always be clearly distinguishable, regardless of the size of the consumer’s device. In other words, the publication must be easily recognisable as marketing, regardless of whether the consumer is viewing or listening to the content on a desktop computer or a mobile device.

3.4.1 Instagram and Instagram Story

Instagram

Use the service’s own labelling tool (”Paid partnership with user XX”), if such is available. Also, immediately at the beginning of the text field, enter Advertisement or ”In commercial cooperation with” as well as the name of the company responsible for the marketing (e.g. ”Advertisement with [Company]”).

Label in the same language used for the content (e.g. do not label in English if the content is in Finnish).

It is not enough to only mention the commercial cooperation in hashtags added to the text field or, for example, by merely stating ”Thanks to Company XX for this product/opportunity”.

Also state whether you have received the product or service presented in your content from a company unsolicited or otherwise without an express cooperation agreement between you and the company. This information must also be placed immediately at the beginning of the text field (e.g. “This free product was received through Instagram”).

Instagram Story

Use the service’s own labelling tool, if you have access to it.

Also label the image, stating that this is an advertisement or commercial cooperation with [Company]. When labelling, ensure that they are easily discernible against the image (e.g. colours, size, placement). Label the beginning of each video in a video series.

3.4.2 YouTube

Insert a separate text banner at the beginning of each video, clearly and unambiguously stating that it is marketing, such as ”Advertisement with [Company]” In commercial cooperation with [Company]”. Clarity also means that the text is large enough, can be distinguished from the background (e.g. strongly contrasting colours) and appears long enough to be read. Merely a verbal mention of commercial cooperation is not enough, as many videos are viewed without sound, thus failing to convey the message to the viewer.

Mention the commercial cooperation and the partner company right at the beginning of the video description field (text field below the video).

Note! Use of YouTube’s own labelling tool (”Includes Paid Promotion”) alone is not enough, as the recognisability of advertising also requires that the commercial name of the company be stated.

Also state whether you have received the product or service presented in your content from a company without being asked by it or otherwise without an express cooperation agreement between you and the company. This information must also be placed immediately at the beginning of the video description field (e.g. “This free product was received through the channel”).

When commercial cooperation is mentioned in a My Day video, it is also considered marketing. Also mention the commercial cooperation at the beginning of videos like this (e.g. ”Includes commercial cooperation with [Company]”).

3.4.3 Blog

Immediately at the beginning of the publication, mention the commercial cooperation and the name of the company involved (e.g. ”Advertisement with [Company]” or ”In commercial cooperation with [Company]”).

The text must be large enough and placed so that the reader will easily discern it from other parts of the content (e.g. colour, placement). If commercial cooperation encompasses more than one publication, each publication must be labelled in the same manner, not just the first one. If desired, you can use this method of labelling in addition to labelling the blog title (e.g. ”ADVERTISEMENT [Blog title]”).

If the blog text contains advertising links, clearly state at the beginning of the publication e.g. “contains advertising links – links marked with an *”. Place the * in front of the links in question. Other clearly graphic symbols like the * may be used, provided that the symbol stands out and is easily identifiable, and you always use the same symbol.

Also state whether you have received the product or service presented in your content from a company without being asked by it or otherwise without an express cooperation agreement between you and the company. This information must also be placed immediately at the beginning of the publication (e.g. “This free product was gifted to/received by/provided for review to/loaned to the blog”).

3.4.4 Podcast

At the beginning of the podcast, mention the marketing verbally in a clear, unambiguous manner, such as by stating “Advertisement with [Company]” or ”Podcast made in commercial cooperation with [Company]”.

Also mention the commercial cooperation and cooperation company at the beginning of the written podcast description. If it is not possible to write a separate description, mention the commercial cooperation and cooperation company at the beginning of the podcast title.

Also state whether you have received the product or service presented in your content from a company without being asked by it or otherwise without an express cooperation agreement between you and the company. This information must also be placed immediately at the beginning of the text field (e.g. “This free product was received through the podcast”).

If you use the same types of commercial breaks in the podcast as are used by commercial radio stations, write “includes advertising” at the beginning of the podcast description and distinguish the commercial break from the rest of the podcast content using a clear, unambiguous advertising lead-in, which helps the listener distinguish between the advertisements and other content. Use advertisement lead-ins so that your listeners will be able to identify them.

4. Minors as a target group and marketing to minors

Companies engaged in influencer marketing must also take the age of the target audience when choosing cooperation partners, marketing methods and products being marketed.

Special attention should also be given to setting guidelines for the influencer in cases where influence marketing generally targets minors and when its content is appealing to them.

As the guardians of their children, parents have the right to decide on family purchases without having marketing target their children directly in an effort to influence their parents’ decisions.

The parents’ right of guardianship is violated if:

an advertisement is aimed at children with a direct exhortation to purchase a product or service, e.g. ”buy”, “try it”, ”get one now”
an advertisement urges children to convince their parents to purchase a product
the main thrust of the advertisement is, instead of the product itself, a game that has a strong emotional appeal to children, a cartoon character, a free prize or a contest.

Children do not have the same ability to understand the purpose of advertising as adults do. The level of development and age of a minor has a significant impact on their ability to understand marketing. When encountering an advertisement, adults are capable of making a conscious decision on whether to pay attention to it or not. Children, who are not as adept at recognising advertising, are not able to make the same choice and, as a result, cannot consciously determine whether they are being subjected to a commercial influence or not

In a decision concerning marketing on Instagram (in Finnish), the Consumer Ombudsman ruled that marketing of, for example, cosmetic surgery procedures, may not be targeted at minors.

5. Legislation and legal praxis

As stated in section 1(1) (in Finnish) of the Consumer Protection Act: “This Act applies to the offering, selling and other marketing of consumer goods and services by businesses to consumers. The Act applies also where a business acts as an intermediary in the transfer of goods or services to consumers.

As stated in section 1(5) (in Finnish) of the Consumer protection Act: “For the purposes of this Act, business is defined as a natural person or a private or public legal person who, in order to obtain income or other economic benefit, deals in, sells or otherwise offers consumer goods or services on a professional basis and for consideration.”

According to section 2(4) (in Finnish) of the Consumer Protection Act, marketing must clearly show its commercial purpose and the party on whose behalf it is carried out. In the preamble to the regulations (Govt. Proposal 194/2001), Section 4 applies to marketing in general, regardless of what tools are used for the marketing

As stated in section 2(4) (in Finnish) of the Government decree on practices in marketing and customer relationships considered unfair to the consumer (601/2008): “The following practices in marketing and customer relationships are considered unfair in the meaning of Chapter 2, Section 3 of the Consumer Protection Act (38/1978) and aggressive in the meaning of Chapter 2, Section 9 of that Act including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them…”.

The Consumer Ombudsman supervises compliance with the Consumer Protection Act. The primary goal of the Consumer Ombudsman activities is to influence the business that is non-compliant with the law to cease such activities or alter them voluntarily.

If the company cannot be persuaded to cease the unlawful activities, the Consumer Ombudsman must take the necessary enforcement actions or refer the issue to the court for resolution. In practice, these situations are subject to imposing a prohibition reinforced with a penalty payment. Matters involving prohibition are resolved by the Market Court.

The Market Court has dealt with the recognisability of advertising in, among others, decision 1994:17 (in Finnish). The company’s publications were designed to resemble editorial publications, and not all readers were initially able to recognise that the publication content was almost entirely comprised of commercial materials presenting the company’s products. Marketing claims were presented in the form of accounts given by private persons and statements issued by experts and were therefore not immediately recognisable as marketing claims. This was considered to be an unfair marketing practice with regard to consumers. According to the Finnish Market Court decision, it must be possible to recognise an advertisement for what it is without a closer perusal.

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