New Finnish guidelines on influencer marketing

The Finnish Consumer Ombudsman’s new guidelines on influencer marketing bring clarity on how commercial content is to be marked in social media.

The Finnish Consumer Ombudsman issued on 26 April 2019 Guidelines on Influencer Marketing in Social Media. The aim of the guidelines is to instruct both companies and influencers on how to disclose, in compliance with the Finnish Consumer Protection Act (38/1978), the commercial collaboration in influencer marketing targeted to consumers. The guidelines are welcomed as the influencer marketing industry has so far lacked clear instructions on what are the practical measures that should be taken on different social media platforms in order to comply with the marketing identification required by the law.

Commercial collaboration between a company and an influencer must be easily recognizable as marketing

The legal concept of marketing is very broad and covers a wide range of commercial activities. The guidelines define influencer marketing as commercial collaboration between companies and influencers that aims to promote the sales of a company or its brand awareness. An influencer can market a company or its products in the form of, for example, a video, a picture or a blog post and an influencer may receive compensation from the company as money or something else having a monetary value such as a gift card or a trip.

According to the Finnish Consumer Protection Act, marketing must clearly show its commercial purpose and on whose behalf marketing is implemented (Chapter 2, Section 4). The new guidelines reconfirm that this requirement of identifiability concerns also influencer marketing, irrespective of how and in which media the marketing takes place. Special attention must be paid when the marketing is targeted to minors as children are less capable of recognizing advertising than adults.

A company is always responsible for its marketing

A company is always responsible for ensuring that any commercial collaboration used as part of its marketing activities is diligently communicated to the consumers. Under the guidelines, a company in practice fulfills its obligations of marketing identification when it instructs and requires the influencer to act in a way that no hidden advertising is engaged in.

Influencers are divided in the guidelines into two categories: professional influencers and non-professional influencers. Unlike professional influencers for which influencer marketing is a source of regular income, non-professional influencers are not entrepreneurs. Therefore, professional influencers are responsible for meeting the marketing identification requirements jointly with the marketing company. However, the Consumer Protection Act and, consequently, competence of the Consumer Ombudsman do not extend to the activities of non-professional influencers.

Each advertisement must be marked as such in the beginning of the social media post

The guidelines present a main rule for marking influencer marketing: every post must contain at the outset 1) mention that the post is an advertisement, and 2) name the advertising company or other recognizable commercial name, for example a brand. The Consumer Ombudsman recommends that the expression “advertisement (in Finnish: “mainos”) with company or brand X” is used. Another option is to use the expression “commercial collaboration (in Finnish: “kaupallinen yhteistyö”) with company or brand X“. If the cooperation covers several posts, each of them must be marked.

In addition to this main rule, the guidelines also include clear instructions on marking of received products and advertising links. Even where no explicit contract regarding the cooperation would exist, an influencer must clearly communicate if a product or a service showing in their content is received from a company for free. Under the guidelines, this information should be given in the beginning of a post by using the expression “received free product” when the product is shown on the platform for the first time or when the product is essentially related to the post. Advertising links must be marked clearly both in the beginning of the post with the expression “contains advertisement links, advertisement links marked with *” and visually with a * mark or similar before each link.

Same rules but different ways on different social media platforms

While the same principles and rules apply to all of the social media platforms, the guidelines provide examples of good marking methods in the most popular ones. The marketing must be clearly recognizable regardless whether the consumer is using a computer or a mobile device.

As for Instagram, the use of the service’s own marking tool is recommended where available. In addition, the advertisement expression and the advertising company must be written right in the beginning of the caption field in the same language that the post is produced. The guidelines specifically point out that it is not sufficient to communicate the commercial content by using hashtags only. When using the Instagram Story feature, video series must be marked in the beginning of all videos.

In YouTube, a separate text banner communicating the marketing must be placed in the beginning of each video. In addition, the commercial collaboration and the company involved must be communicated in the beginning of the video’s text description field. The use of YouTube’s own marking tool is not sufficient alone as it does not disclose the name of the advertising company.

For blogs it must be clearly informed in the very beginning of every post that the post is an advertisement as well as the name of the advertising company. Attention must be paid to the size, color and placement of the text.

In Podcasts influencer marketing must be communicated both verbally in the beginning of the podcast and in written in the beginning of the written description of the podcast or its title. If commercial breaks similar to commercial radio stations are used, it is sufficient to use a commercial break sound to separate the commercial content from other content and state in the beginning of the written description of the podcast that it includes advertising.

The Consumer Ombudsman supervises compliance with the consumer legislation

The Consumer Ombudsman supervises that companies’ marketing activities conform to current consumer legislation. Under the Guidelines on Influencer Marketing in Social Media, if a non-compliant company cannot be persuaded to cease the unlawful activities voluntarily, the Consumer Ombudsman can refer the issue to Market Court for resolution. The court may order a prohibition reinforced with a penalty payment. So far no influencer marketing cases have reached the Market Court in Finland. However, the Finnish Council of Ethics in Advertising, a self-regulatory body of industry and commerce acting in the auspices of the Finnish Chamber of Commerce, has interpreted the identification requirements in several statements. It will be interesting to see whether the supervision will be stricter in the future now that the clear Guidelines have been published.