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Legal innovation in Industry 4.0




Three key facts you need to know about influencer advertising

Cristina Mesaprincipal associate at the Garrigues Intellectual Property Department.

Autocontrol issues its first opinion recommending removal of an Instagram post because it was not properly identified as advertising. The plenary meeting of Autocontrol’s advertising jury concluded that Swedish influencer Paulina Eriksson failed to meet the “authenticity” principle under rule 13 of The Code of Advertising Practice of Autocontrol.

Swedish influencer Paulina Eriksson is the first person to be reprimanded by Autocontrol for infringing rule 13 of its Code of Advertising Practice requiring the ethical principle of authenticity of advertising. In other words, the obligation to separate editorial content and advertising content adequately: 

“Commercial communications will be identifiable as such regardless of the means, format, or media used. When a commercial communication, including so-called ‘native advertising’, appears in a medium that contains news or editorial content, it must be presented in a way that is easily recognisable as an advertisement and, when necessary, labelled as such. That the real intent is advertising must be obvious.Therefore, a communication that promotes the sale of a good or the contracting of a service should not be passed off, for example, as market research, consumer survey, user-generated content, private blog, private publication on social networks or an independent analysis”.

The jury considered that the influencer published a post advertising Swedish brand URBANISTA® earphones without identifying it as “advertising”. Although this is a non-binding opinion that does not require the influencer to remove the post, and does not carry any type of economic sanction for her or for the brand, it does contain a warning to surfers for anyone who, wrongly, insists that influencer advertising is not regulated and they do not have adequate mechanisms to manage the hiring of influencers and subsequent broadcasting of their campaigns. 

There are three key facts to be taken from the Paulina Eriksson case by anyone carrying out marketing with influencers:

  • First key fact: what counts is the message. The content of the message needs to be considered to determine whether it is an advertising message: “This plenary meeting has studied the characteristics and content of the message broadcast by the influencer and … clearly perceives an advertising intent in it. The fact is the thought leader centers her post on a single product and employs a clearly praising tone on the sales and characteristics of the wireless earphones … [T]he post is focused on that product and only refers to its benefits and particular characteristics, without mentioning or even suggesting any bad points about it or pointing to any alternatives”.  
  • Second key fact: remuneration is not everything. The presence of recompense, either economic or in kind, is a very reliable indicator of the existence of an advertising aim, but that cannot be taken to mean that if there is no remuneration there is no advertising intent. In actual fact, the Autocontrol jury did not take into account Paulina Eriksson's primary defense consisting precisely of the absence of any economic recompense from URBANISTA®: “[I]n relation to the absence of any economic recompense, this jury, under the traditional line of argument on surreptitious advertising, must signal that to affirm that a message is of an advertising nature it does not need proof that economic recompense occurred. Quite the opposite in fact, the advertising nature of a message may be affirmed by reference to its specific characteristics and circumstances”.
  • Third key fact: the #ad hashtag must be visible. When it is decided that a post needs labeling as advertising (with #ad, #sponsored, for example), it is not sufficient to include it where it will be “hidden” among other messages or hashtags published in the post. The identification must be visible to the reader: “Although the author added the “Ad” sign at some point, that sign was inserted at the end of the message where it was diluted, and went completely unnoticed by the target audience”.

Autocontrol has therefore confirmed the point we have been making for years against the wrong message that is being sent in parts of the media: influencer advertising is regulated. And always has been. Spain may even be seen as a pioneer in this field by including the principle of authenticity more than half a century ago in the 1964 Advertising Act: “Article 6. In the performance of every advertising activity the principles of legality, accuracy, authenticity and free competition must be observed”. The obligation has always existed and remains today in various laws including the General Advertising Law (Ley General de Publicidad), the Unfair Competition Law (Ley de Competencia Desleal) or the General Audiovisual Communication Law (Ley General de Comunicación Audiovisual) among others.