Responsible Influencer Marketing is Your Calling Card

‘We’re Just Sending Review Products–That’s Not Marketing, Is It?’

Sending products to an Instragram influencer, YouTuber or blogger in the hopes that they will mention the product on their channel counts as marketing, even if no commercial cooperation has actually been agreed—the requirements that marketing be identifiable still apply.

From the perspective of the Consumer Protection Act, all activities that seek to influence consumers commercially are essentially marketing.  Influence can be direct or indirect, but it can never be hidden.

Consumers Have the Right to Know When Someone Is Attempting to Influence them Commercially

The Consumer Protection Act’s requirement for the identification of marketing has two dimensions. First, marketing must clearly show its commercial purpose and on whose behalf it is. The purpose of the identification requirement is that consumers can see when and on whose behalf someone is attempting to influence them commercially. This requirement applies to all marketing regardless of method.

The identification of marketing has given rise to a great deal of debate both in Finland and abroad. The Council of Ethics in Advertising of the Finland Chamber of Commerce has issued numerous statements on the identification of marketing on social media. Competition and Markets Authority (CMA) in Great Britain has gone so far as to publish a ‘naming and shaming’ list of influencers who do not mark commercial cooperation clearly enough, in other words, who engage in hidden advertising.

Clear and Visible at First Glance

One statement issued last year concerned the identification of an advertisement on the Instagram Story feature. The Story feature allows influencers to post pictures, text and short videos to Instagram that are visible for 24 hours. The Story post in question was marked as commercial cooperation by putting text in the upper corner of the post. However, this text was partially covered by the influencer’s username and profile picture. The white font of the text also partially blended in with the background, which hindered identification.

The conclusion was that the advertisement published using the Story feature was not clearly identifiable as advertising to the average consumer. There are two points worth highlighting from the reasoning:

The identification of advertising is always subject to an overall assessment. For example, using the Instagram Story feature emphasises the requirement for clarity, because the feature uses quickly changing pictures and videos. The fact that a post is an advertisement and the name of the advertiser must be clearly marked on advertisements published using the feature in such a way that they can be seen at a glance.

Identification Requirement Emphasised on Social Media

The expansion of the field of advertising can also be seen in a decision concerning a YouTube video concerning plastic surgery. According to the advertiser, the video was not made for the purposes of advertising, rather the YouTuber in question approached the advertiser to make the video. The existence of cooperation had been stated in the publication information, which could be read by clicking on ‘Show more’. This was found to be hidden advertising.

The decision also separately stated that it did not matter who approached who to make the video. The Council of Ethics in Advertising noted that the identification of advertising and the mentioning of the advertiser is emphasised in social media posts that contain a great deal of editorial material. A large number of the YouTuber’s viewers were minors, which also made the advertising inappropriate. The advertiser was issued a warning.

Companies Bear Liability and Brand Risk

The above decisions show that advertisers have to know their environment. It is essential to know what platforms are being used for advertising and what the influencer’s target audience is like. For example, in the plastic surgery case, a large number of the viewers were minors, which meant that the marketing should have taken particular care not only with respect to identification, but also to complying with good practices and being suitable for minors.

It is vital for companies to remember that they ultimately bear the legal liability and brand risk for marketing through influencers. A company can free itself from liability if it can prove that it gave the influencer sufficient instructions on how to carry out the marketing. This means that it is particularly important to draft an agreement on influencer cooperation that makes the obligations concerning the identification of advertising sufficiently clear.

Responsible marketing can also be a calling card. Consumers are increasingly aware and see hidden marketing as unprofessional. Consumers remember brands that engage in good and transparent marketing as responsible and positive actors.