Lately social media has drawn a lot of attention in relation to unfair business-to-consumer commercial practices. Most recently, the Danish consumer ombudsman has reported the media bureau MemeCph and the toothpaste producer Unilever for being responsible for hidden advertisement through a Danish pop singer on her Instagram-profile. Furthermore, the consumer ombudsman in 2015 published a guideline for bloggers on surreptitious advertising.
The consumer ombudsman
The Danish Consumer Ombudsman is an independent public authority which supervises compliance with Danish marketing law and other consumer protection legislation in Denmark.
The Consumer Ombudsman shall inform the public about matters that are dealt with by the Consumer Ombudsman, the prosecutors or the courts, and which are of general interest or importance for understanding the provisions and legislation which the Consumer Ombudsman supervises.
The Consumer Ombudsman can, as part of its public supervision, report to the police and request that a charge against businesses is raised.
The toothpaste case
Following the tremendous candy dish and sinful Sunday, I end the evening with a good round of brushing. Maybe I’m just imagining it, but I seem to see a little difference. Those were roughly the words from a Danish pop singer published on her Instagram profile, together with a picture of her brushing her teeth with Pepsodent toothpaste.
The Danish Ombudsman found this to be a hidden and thus unlawful advertisement. The Consumer Ombudsman reported both the company Pepsodent and the media bureau MemeCph, responsible for the pictures on the Pop singer’s Instagram profile, to the police. The singer herself got off with a warning.
In the case the Consumer Ombudsman emphasized, the fact that it was not clear to the reader of Instagram that this was in fact an advertisement. The Consumer Ombudsman added that posted photos for which the purpose is to promote products for a company should be followed with tags like “advertisement” “sponsored” e.g.
The decision clearly points out that it is not enough to use tags with the name of the company whose product is advertised for – which the singer in this case only did.
Lawful advertisement on social media
The Danish Marketing Act, which is part of the implementation of Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market, regulates that an advertisement shall be presented in such a way that it will be clearly recognizable as an advertisement of whatever form and whatever media in which it appears.
On social media like blogs, Instagram and Facebook, the updates are often very personal, and the reader is therefore often, to a much higher degree, disposed and influenced by the content than in regard to normal advertisement.
In the guidelines from the Danish Consumer Ombudsman, advertisement is defined as: any form of communication in connection with the exercise of business activity, which aims to sell products and services.
If a company wants, for instance, a blogger to write about the company or the company products, it will usually be because the company believes that this will promote the company’s sales. An agreement with a business for a post on social media with the mention of a product will therefore, according to the Danish Consumer Ombudsman, be an advertisement for the product. This will be the case regardless of the way the agreement has been made. In such cases, the Danish Consumer Ombudsman considers the advertisement in compliance with the Danish Marketing Act only if – in the beginning of the text/the post – it is clearly marked with one of the following texts:
- Paid posts
- Sponsored posts
The toothpaste case is in accordance with the guidelines.
If a product is mentioned on a person’s own initiative however, and without having any agreement with the business producing the product or offering it for sale, this will not be categorized as an advertisement. The borderline between advertisement and private recommendations can be almost invisible and therefore, this is a subject that needs attention.
It is up to the business and brand holders to advise the blogger e.g. of these requirements. When a business is ultimately conducting advertisements which serve the purpose of influencing Danish consumers, by default, the Danish Marketing Act must be complied with. Therefore, the above not only applies to Danish-, but also foreign companies when conducting advertisements through social media.