USE OF #AD, #SPON OR #PROM IN SOCIAL MEDIA?

USE OF #AD, #SPON OR #PROM IN SOCIAL MEDIA?

INTELLECTUAL PROPERTY

On 8 October 2018, the Belgian Advertising Council published Guidelines for online influencers (“Influencer Guidelines”).

In recent years, influencer marketing has become an essential part of the communication of many companies.

In the absence of any legal framework in Belgium, the Belgian Advertising Council decided to publish Influencer Guidelines to provide legal certainty to advertisers and influencers and to protect consumers.

Here are some of the important takeaways from the Influencer Guidelines.

Self-regulation
The Influencer Guidelines were compiled and supported by parties from across the industry (a delegation of influencers, all members of the Advertising Council and FeWeb) to provide practical guidelines on how, when, and what to disclose when engaging in influencer marketing on any social media channel.

The parties involved agreed on the principle of self-regulation, with the Jury for Ethical Practices (“JEP”) as the supervising authority for compliance with the Guidelines.
Scope
The Influencer Guidelines apply only when the advertisement meets the following two conditions:

(i) The online influencer receives a fee in natura or in cash to communicate about the advertiser's brand, product, service, or organization, and
(ii) The advertiser has significant control over the communication.
Applicable rules
Every commercial communication must be clearly recognizable and fair.

This can be achieved by:

An explicit and textual statement that the message concerns a commercial communication;
The context in which the online message is published which makes it clear that it concerns a commercial communication;
Brand or logo notification that makes clear that it concerns a commercial communication.
The message may not contain incorrect information or mislead the target group with false statements, and commercial communication should not directly encourage children to persuade their parents or other adults to buy products for them.
Recommendations in applying the rules
First, the online influencers must make the commercial relationship with the trademark or company clear in a visible or audible way. This can be done by mentioning the following words in the commercial communication: “advertising,” “publicity,” “sponsorship,” “promotion,” “sponsored by,” “in collaboration with,” or other similar terms or hashtags such as #ad, #spon, or #prom.

Second, because social media does not have any language boundaries, it is necessary to adapt the above words to the language of the message or the target group.

Third, the words must be mentioned in the right way and placed so that the recipient immediately understands the commercial nature of the message.

Finally, the words cannot be hidden, so that the average consumer notices them easily.
Person responsible for compliance with these rules
The person who publishes the advertising message, i.e., the online influencer him- or herself, is responsible for compliance with the Influencer Guidelines.

In addition, the companies that commission the advertising messages, the networks, the agencies, the platforms, and other parties involved in marketing on social media can also be held responsible for non-compliance with these rules.
Sanctions
The JEP can now receive complaints about influencer marketing and will deal with them in accordance with its regulations.

In the case of non-compliance with the Influencer Guidelines, the JEP may request a party to change/cancel a campaign. However, the JEP relies on voluntary compliance with its decision by the people/companies involved.

The JEP also works preventively. When in doubt about a campaign, companies can submit a request for advice through the website www.jep.be.
You can read the text of the Guidelines in Dutch and French here.

In parallel, Kris Peeters, Minister of Consumer Protection, is currently finalizing a draft Bill on advertising and online influencers which will determine how and when they should indicate the commercial nature of a post. The draft Bill will be published within the coming weeks, so there is a risk of stricter rules in the near future.

To be #followed