In the first part of the article[1] on the recommendations of the President of the Office of Competition and Consumer Protection (“President of the OCCP”) on the labeling of advertising content by influencers on social media (“Recommendations”)[2], I have discussed to whom the Recommendations are addressed, who is an influencer and in which cases it is necessary or not to mark materials as advertising content. In the second part of the text I will describe how, in the opinion of the Polish regulatory authority, advertisements should be marked correctly, i.e. in accordance with current regulations. 
 

How to label ads correctly? 

All advertising material should be marked in a way that is clear, unambiguous and understandable to any user. In other words - the user should know "at first glance" that he or she is facing sponsored material, not neutral information. This applies to both regular followers and users who get acquainted with the profile of a given influencer for the first time. The influencer should also clearly indicate what brand he or she is advertising.

What does "clear labeling of ads" mean in practice? 

In the opinion of the President of the OCCP, materials are marked in a clear, unambiguous and understandable manner if the relevant information about the commercial nature of the content: (i) is located in a visible place (e.g., at the beginning of the description/video); (ii) is distinguished from the rest of the content; (iii) is written in a clear and appropriately large font; (iv) is in Polish language (if the profile is also conducted in that language); and (v) contains information clearly indicating the commercial nature of the publication.

Recommended solution: two-tier (two-level) labeling 

The President of the OCCP recommends two-tier (two-level) labeling of ads. Two-tier labeling means: (i) using both the functionality of the platform for marking commercial content, e.g. appropriate filters, and at the same time (ii) marking materials as ads on your own (e.g. in the description of the post or in the video) - according to the guidelines in the section above. Each time, before publishing a given material, it is worth verifying that the marking of advertisements is sufficiently clear and unambiguous (for example: whether the font color clearly differs from the background color).

What designation are recommended ? 

Depending on the type of specific content, the President of the OCCP suggests using the following terms to label commercial content:

• Advertising material: (i) #advertisement or [advertisement]; (ii) #advertisingmaterial or [advertising material]; (iii) #advertisingcollaboration or [advertising collaboration]; (iv) #sponsoredpost or [sponsored post]; (v) #sponsored material or [sponsored material]; (vi) #paid cooperation or [paid cooperation]; (vii) #video #report #post #material + #advertising #sponsored = e.g. #video #advertising, #reportasponsored; (viii) XYZ brand advertising; (ix) Paid collaboration with XYZ brand;
• Gift: (i) #gift or [gift]; (ii) #present or [present];
• Self-promotion: (i) #self-promotion or [self-promotion]; (ii) #self-advertising or [self-advertising]; (iii) #own brand or [own brand].

In the case of gifts, when publishing materials with further gifts from the same brand (the same advertiser), it is necessary to use such designations as for advertising materials.

What designations are not recommended? 

In the opinion of the President of the OCCP, the following terms are not sufficiently clear, and thus are not recommended for labeling commercial materials:

• designations that are illegible, ambiguous, or incomprehensible;
• designations in a language other than Polish;
• designations in abbreviated form, instead of the full word (e.g. “#ad” instead of “#advertisement”);
• designations that are not explicit/ unambiguous (e.g., "#collaboration" - without indicating that the influencer received material benefits).

What if the advertiser requires the influencer to label the content incorrectly? In such a situation, the influencer has the right to refuse cooperation. The President of the OCCP pointed out that the influencer is responsible for the content it publishes.

What does it mean that a designation is illegible? 

A designation may be considered illegible, ambiguous or incomprehensible (and therefore: misleading) if:

• it is placed in an invisible place (e.g., in the background of another inscription, after using the "more" or "see more" option, at the edge of the image, etc.);
• is in a color that blends with the background;
• is written in an unclear or too small font, with errors;
• is in a language other than Polish, as long as the profile is conducted in Polish;
• contains vague terms that do not indicate the commercial nature of the content (e.g., "cooperation").

What does this mean in practice? 

It is clear from the Recommendations that simply specifying "#cooperation" or "The material was created in cooperation with X [advertiser's name]" is not sufficient. Why? This is because such a designation - in the opinion of the President of the OCCP - does not clearly emphasize that the influencer received material benefits as a result of the cooperation. For more on what material benefits are, please see my previous article - the link to it is located at the bottom of this text.

There are cases when marking posts as advertising material will not be mandatory. Nevertheless, it should then be considered, whether it will be required to indicate that the influencer received a given good (e.g., a phone) or service (e.g., a concert ticket or a visit to a beauty salon) free of charge, or that he / she is obliged to return the product.

In conclusion, it is worth mentioning that the Regulations are not legally binding. If an influencer or advertising agency labels content in a different way than indicated in the Recommendations, this does not automatically mean that their actions will be non-compliant with law. However, the Guidelines are an important source of information on how the regulatory authority in Poland interprets current advertising labeling regulations.

[1] First part of this article is available at: http://blog.galalaw.com/post/102hxxw/guidelines-from-the-regulatory-authority-in-poland-new-advertising-standards-in.

[2] Recommendations of the President of the Office of the Competition and Consumer Protection on the labeling of advertising content by influencers on social media; the document is available only in Polish, at: https://uokik.gov.pl/aktualnosci.php?news_id=18898.

Photo: https://pixabay.com/pl/photos/g%c5%82oska-bezd%c5%bawi%c4%99czna-998990/