Following the increased popularity of social media and influencers, the concept of influencer marketing has also become more and more relevant the last years.
A relatively new type of marketing in a relatively new type of marketing channel. At the very beginning influencers could act more or less without being scrutinised by consumers, media or the Swedish Advertising Ombudsman (RO). Few people understood at that time that posts made by the influencers were in fact advertising. As influencers’ power and impact on the marketing arena grew critical voices were raised, including the ones from RO and the Swedish Consumer Ombudsman (KO). The general view of the critical voices was that it was not apparent for the viewers that certain of the influencers’ posts were marketing by a company wanting to promote its products, and not personal recommendations by the influencer. The critics also complained about the transparency and argued that companies behind the marketing campaigns were not evident (or at least not evident enough).
The first Swedish verdict regarding influencer marketing came January 31, 2018. From that day, there has been a major legal focus on influencer marketing in Sweden.
Only in May this year, RO tried sixteen cases that further shed some light and clarified the practice of what applies to influencer marketing in social media. These cases resulted in several convictions since, according to RO, it was not apparent that the social media posts were in fact advertising as the posts either lacked advertising identification, or the advertising identification was considered too vague in its design or placement. The fact that a trademark or company is tagged in an image or tagged in a text in posts may not be sufficient advertising identification according to RO.
Thursday last week the Patent and Market Court of Appeal further clarified and highlighted in the “Kissie-case” how influencer marketing shall be designed in Sweden in order to be in accordance with the Swedish Marketing Act. Considering the character of social media the Patent and Market Court of Appeal concluded that a paid post must be designed in a way that allows the average consumer to identify the post as advertising with no more than a quick glance. The court did not find this requirement fulfilled by a text stating “in cooperation with”, “sponsored post” or “#cooperation” when the references are made in small letters, lack information that the influencer has been paid and are placed in a not readily visible place in the post (i.a. at the end of a post). According to the court it must as a minimum become apparent for the consumer that the influencer has been paid to make a post to fulfil the advertising identification requirements.
Against this background, we recommend both influencers and companies using influencers as a marketing tool to consider carefully how the influencer posts are marked. It is important to have in mind that the consumer shall be able to identify the post as advertising at a quick glance. In this context it is notable that a communication by an influencer stating that a post has been created for advertisement purposes, e.g. by hashtags such as #ad, #paid, #sponsored, or similar statements, is not sufficient according to the Swedish Marketing Act, given that the identification design or placement also matter. Considering the Patent and Market Court of Appeal’s statements we would recommend that the marketing information is placed clearly visible in the top of the post, that it is written in clearly readable letters that deviate from the post as such and that it follows from the wording that it is a paid post.
To minimize risk, both for the influencer and for companies working with influencers, we further recommend that the influencer agreements entered into include a more detailed description and instruction of how the influencers shall mark their communications with the important advertising identification. If you have further questions or concerns, you are always welcome to contact us.
By Caroline Ygge and Karin Odkrans, Morris Law, December 2019