Surreptitious advertising punished by the Polish consumer watchdog

Almost a year after the publication of its Recommendations on tagging advertisements on social media, the president of the Office of Competition and Consumer Protection (OCCP) has imposed the first fines for surreptitious advertising and misleading consumers, on both the authors and the advertiser. The decisions relate to one of the leaders in the dietary supplement industry (fined over 5 million PLN), and three influencers from the fitness industry (approximately 44 thousand PLN).

What had they done wrong?

The company paid influencers for placing its products in posts and stories, in line with internal guidelines it had provided. At the same time, it recommended the use of unclear tags for advertising materials – among others, those referring exclusively to the brand of the advertiser, names of individual products, or English slogans.

The president of the OCCP highlighted the role of the company which created and shared illegal recommendations with influencers. The obligation to disclose paid cooperation lies both on online authors and agencies, as well as advertisers, and the company should not have suggested that the applicable laws could be circumvented.

With regard to the influencers, although they were publishing sponsored materials in line with the guidelines from the advertiser, they either failed to tag them at all or did it in a way that did not directly indicate the commercial nature of the published materials.

How to do it legally

Influencers should tag advertising materials published on their social media channels in a way that is clear, unambiguous and understandable for every recipient. The commercial nature of the published materials should be clearly indicated, preferably in Polish.

The requirement of legibility of the advertising material involves first and foremost the provision of adequate visibility of those elements. Appropriate placement of tags and the use of an adequately large font visible against the background is crucial. The best way to achieve this goal is to use "two-level tagging" consisting of the use of the platform’s functionality and tagging it single-handedly (for example, in the description, in a photo or video, in the narration of the material).

Only using the tools offered on a given platform may not protect the influencer from the consequences of incorrect tagging of advertising materials – especially if it is invisible or not understandable to the recipient.

Osborne Clarke comment

The significant amount of the penalty draws further attention to the OCCP's activities to date in the area of influencer marketing.

Over the past two years, the Polish watchdog has gone from being mildly interested in the activities of financial influencers to tracking and verifying the influencers within the Polish market.

In the meantime, it has initiated eleven investigations against entities directly related to marketing on social media, six of which resulted in the imposition of fines totalling PLN 139 thousand.

The authority has also extended its interpretation of the entities obliged to comply with the issued Recommendations on tagging advertisements on social media to entities managing Internet news and lifestyle portals. As a result, investigations were initiated against, among others, the Polish branch of a famous media and tech company.

In future, further intensification of the OCCP's activities in regard to influencers is to be expected, as well as an increase in activity towards other online portals undertaking marketing with a similar formula to that on social media. The OCCP, in consistently carrying out its activities, proves that the Polish influencer marketing market is no longer overlooked by public authorities. Influencer marketing has lost its previous status as an unregulated segment of entrepreneurial traffic.

Norbert Lutowski, a Paralegal with Osborne Clarke, contributed to this Insight.