Influencers, trademarks and publicity: end of the “outlaw city”?

Sunday, 1 of March of 2020

Over the past decade, social media has revolutionized the world of communication and, in particular, the traditional way of advertising. In this vein, the common discrepancies between legislation and the real world have quickly become noticeable, to the point that social networks seem to have been fully installed outside the regulations on publicity. Consequently, while some media such as television are subjected to constant surveillance and significant fines, others like Instagram seem to escape all control.

At least so it was until a few days ago, when the Autocontrol jury published its decision (and the amended decision) against an influencer for advertising on Instagram a product in contravention of the principle of authenticity that seeks to eradicate covert advertising.

In the social media world it is common for certain profiles with presence and influence among the public (the aforementioned influencers) to recommend products to their followers. What began as "recommendations of most used products" has reached the limit where users with audiences of more than one million followers promote even the indiscriminate use of pharmaceutical products.

In the present case, the reported influencer posted a photo of her along with a headset and a text highlighting its benefits and characteristics. The decision states that the message at issue:

  1. Has an advertising purpose (focused on a single product and limited to its virtues and advantages);
  2. Has no advertising-identifiable nature (pretending to be a personal opinion); and
  3. Does not contain an express and sufficient identification about its advertising nature.

The abovementioned characteristics make the online publication contrary to the aforementioned principle of authenticity, contained in Norm 13 of the Code of conduct on Advertising of Autocontrol; and also in contravention of the following Spanish laws:Ley de Servicios de la Sociedad de la Información (Articles 20: 38.4.c and 39.1.c, which include fines up to 30.000 euros); Ley de Competencia Desleal (art.26) and Ley General de Publicidad (art. 3.e).

Another noteworthy observation is that the jury does not consider the inclusion of the tag or hashtag #Ad sufficient to comply with the current rules. This practice seems to have become a recurring remedy among the brands advertised on social networks. Nor is it relevant that the language was English, that the product was borrowed or that the model or influencer had not received any financial compensation, as claimed by the latter.

Therefore, even though the decision is not binding (because the complainant is not an associate of the regulatory body) it may be the prelude for a change in common social media practices.

In this sense, both trademark owners and influencers should not lower its guard and shall pay attention to how their message is conveyed, in order to accommodate it with the regulation in force.