IP Snippets

POLAND: Undisclosed Brand Owner–Influencer Relationships Under Scrutiny

Published: August 2, 2022

Anna Sokołowska-Ławniczak Traple Konarski Podrecki i Wspolnicy Sp.j, Warsaw, Poland Unfair Competition Committee

Verifier

Brian Darville

Brian Darville Oblon, McClelland, Maier & Neustadt, LLP Alexandria, Virginia, USA Unfair Competition Committee

At the end of 2021, the Polish Office of Competition and Consumer Protection (UOKIK) addressed the issue of whether influencers must disclose online when they collaborate with a brand. UOKIK answered with a resounding “Yes,” ruling that consumers have the right to know whether a post or social media story is an advertisement or an influencer’s genuine opinion.

It all started with a UOKIK inspection and a request for clarification concerning a group of influencers that created content on social media, including Instagram and Facebook. Based on a few cases, UOKIK learned that undisclosed brand owner–influencer relationships were just the tip of the iceberg. According to UOKIK, most influencers did not inform their audience that a given post had been created in collaboration with a given brand, which made the post, therefore, an advertisement of the identified products and services. Furthermore, UOKIK found that the narrative that influencers occasionally use, can, at times, erroneously suggest to the average viewer that a particular post contains the influencer’s personal and private assessments and opinions. UOKIK decided to stop this practice as it can mislead online followers and consumers.

As a result, influencers must clearly mark their content where they cooperate with a given brand. Otherwise, they run the risk of engaging in misleading advertising, which can give rise to claims under the Act on Combating Unfair Competition of April 16, 1993, and the Act on Combating Unfair Commercial Practices of August 23, 2007. The influencer must indicate clearly and explicitly to the follower/consumer in the post that the content the influencer is sharing is either their opinion or an advertisement of the brand’s products or services. In addition, UOKIK made it clear that using only the hashtag “#” containing the term “collaboration” may be insufficient, particularly if a number of other hashtags are in the post, because the follower simply may not notice the relevant one.

UOKIK has commenced several proceedings against influencers that may prove to be financially significant. The president of UOKIK reiterated that the penalty for publishing untagged advertising content “can amount to a fine of ten percent of the annual turnover of the influencer.” In addition, those who fail to cooperate with the president of UOKIK during an investigation of brand owner/influencer practices could face fines up to €50 million (approximately US $51.1 million).

The EU has no uniform legislation on influencer marketing; each member state has its own rules on these issues, considering the general guidelines on the prohibition of misleading advertising or the prohibition of advertising of specific products, for example, cigarettes.

UOKIK press releases concerning this issue can be found at the links here and here. From the second link, one can download UOKIK’s “Instatips for Consumers,” which was published in Spring 2022.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest. Law & Practice updates are published without comment from INTA except where it has taken an official position.

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