No more hidden advertising of products by influencers? Recommendations of the Polish Competition Authority on the labelling of social media advertising

As part of an investigation into reports that Polish consumers were being misled over social media, Poland's Office of Competition and Consumer Protection (UOKiK) issued Recommendations pertaining to the tagging of advertising content by influencers.

As part of its campaign to monitor social media advertising, the UOKiK set up an official account on Instagram, and has already initiated a number of proceedings against influencers concerning the misleading of consumers (some of which have already resulted in financial penalties). The UOKiK's Recommendations, which are the next step of its investigation, are expected to have a significant impact on social media advertising, both for influencers and the brands they advertise.

These Recommendations will likely be the basis for UOKiK’s assessment in proceedings for misleading consumers in relation to inappropriate labelling of advertising material. Penalties imposed on this basis may be severe: up to 10% of the revenue of a given entity generated in the financial year preceding the year in which the penalty is imposed.

Any entity considering promoting its products via social media should carefully read the Recommendations and the examples of proper labelling for marketing and advertising content in which the UOKiK draws attention to clear labelling of all advertising materials.

The UOKiK also stated that it is irrelevant whether the advertiser influenced the content of the post/video. If the influencer received remuneration for its publication, this content must be properly labelled.

The UOKiK found that remuneration for the publication of content does not always result from a transfer of funds to the influencer’s account, but can also consist of:

• Keeping a received product for free;
• Sponsoring a trip;
• Covering additional costs of attending an event (in addition to the ticket) such as accommodation or food;
• Receiving a discount for the advertiser's products;
• Right to part of the profit from sales linked to the link or code published by the influencer.

The UOKiK recommends that advertising material should be tagged in a clear, unambiguous and understandable way for each consumer, both for regular subscribers as well as new users; and recommends the use of two-level tagging (i.e. using both the functionalities offered by a given platform as well as independently tagging the content such as in the product description or on a posted photo/video).

Other recommendations include:

• Using the tags #reklama, #materiałreklamowy, #płatnawspółpraca, #post # reklamowy;
• Describing posts in this way: [reklama], [post sponsorowany], [współpraca reklamowa];
• Using the functionality offered by the platform for marking commercial content;
• Placing information in the posts or in their descriptions in this way: Reklama marki XYZ, Płatna współpraca z marką XYZ;
• Indicating the name of the advertised brand.

The UOKiK's Recommendations state that influencers should not:

• Use only the tag #współpraca (EN: #collaboration), without indicating its paid nature;
• Use abbreviations and foreign words (e.g. #collaboration #ad, #promo, #rek);
• Place the tag in a place visible only after clicking "more", "see more" or a similar option;
• Use small, indistinct font and illegible colour scheme.

The obligation to appropriately tag posts also applies to:

• self-promotion (e.g. #autopromocja);
• brand ambassadors; and
• receipt of gifts (e.g. #prezent or # podarunek in the case of first publication concerning a gift from a given company; any subsequent gifts will be considered advertising) or free event tickets.

The UOKiK's recommendations in English can be found here.

For information on how these Recommendations could affect your Poland-based business, contact your CMS client partner or local CMS experts: