In Finland, as elsewhere, the law dictates that the commercial nature of marketing activities and the party on whose behalf they are being carried out must be clearly disclosed. When advertisements were still confined mainly to print, television and radio, these obligations were relatively straightforward to fulfil. However, the rise of social media and influencers has blurred the line between editorial and commercial content.
No binding rules exist on exactly how marketing should be identified as such on social media. According to a position on covert advertising, issued by the Nordic Consumer Ombudsmen in May 2016, an overall assessment must always be carried out to determine whether commercial content is adequately marked. Factors such as the choice of wording, font size and the placing of the relevant information will be taken into account in this assessment.
Case law on covert advertising is still lacking in Finland. Recently, however, the Consumer Ombudsman and the Finnish Council of Ethics in Advertising (a self-regulatory body of the Finland Chamber of Commerce) have given a number of decisions and statements clarifying how they consider influencers should indicate the commercial nature of paid promotions and other similar collaborations on various social media platforms.
All of the decisions and statements given so far have concerned B2C marketing. However, the prohibition on covert advertising applies also to B2B marketing. Therefore, the guidance provided by these decisions and statements is likely to be useful also to B2B marketers.
In January 2017, the Council gave a statement concerning a blog post published by a popular lifestyle blogger (MEN 1/2017). The blogger had been invited by a Finnish food company to visit a poultry farm and a slaughter house. The blogger had also been paid by the food company to write about their experience.
The resulting blog post, which had a positive tone, was marked "in collaboration with Company X", as recommended in the Finnish Consumer Ombudsman's guidelines on the recognisability of advertising in blogs. Nevertheless, the Council found that it was not possible for the average consumer to notice, at a first glance, that the blog post was in fact marketing.
According to the Council, the aforementioned text was not easily visible, clear and understandable. Rather, it was small-sized and it blended in with the content of the blog. Moreover, the Council considered that the expression "in collaboration with" did not clearly express to the average consumer that the collaboration was commercial in nature.
The Council recommended that expressions such as "advertisement" or "commercial partnership" (together with the name of the company or brand) should be used instead. In addition, attention should be paid to ensuring their visibility.
Nevertheless, due to the lack of case law on covert advertising on social media, and because the company and the blogger had tried to comply with the Consumer Ombudsman's guidelines, the Council exceptionally deemed that they had not acted contrary to good practice.
Videos posted by influencers on YouTube have been subject to the greatest scrutiny by the Consumer Ombudsman and the Council. To begin with, in June 2016, the Council gave a statement concerning 15-minute video of a popular gaming vlogger playing and commenting on a particular game as part of a campaign organised for the game company by an influencer network (MEN 13/2016).
At the top of the top of the description box underneath the video, the text "this video is sponsored by Company X" was displayed in both English and Finnish. On the video, the vlogger mentioned, among other things, that they wanted to encourage viewers to get the game.
Nevertheless, the Council found that the video was not readily recognisable as an advertisement for the game. The Council reasoned (somewhat controversially) that although sponsorship is a form of marketing, it was misleading to say that the video was sponsored, because in sponsored audiovisual content it is prohibited to encourage the purchase of the sponsor's products.
Next, in a decision given in February 2017, the Consumer Ombudsman deemed that a music video created as a part of a commercial partnership between a well-known Finnish singer-songwriter and an international construction products brand constituted covert advertising, because it included numerous references to the brand and could be accessed also through other sources than just the brand's own YouTube channel and Facebook page.
According to the Consumer Ombudsman, consumers searching for or coming across the artist's music would not expect to be exposed to marketing, unless they were specifically informed of this. Displaying the brand's logo and name as a small-sized overlay and below the title of the video was insufficient, because these were not visible if consumers shared the video on other social media platforms.
Subsequently, YouTube has added a paid promotion disclosure feature, which displays a text overlay, reading "includes paid promotion", for the first few seconds a viewer watches a video. However, in a newsletter published by the Consumer Ombudsman in November 2017 and two statements given by the Council in December 2017 (MEN 37/2017 and MEN 38/2017), the use of this feature alone has also been deemed insufficient, because it does not indicate who the marketer is.
According to the Consumer Ombudsman and the Council, vloggers should mention orally at the beginning of each video, whose products they are promoting. In addition, because videos are often watched with the sound turned off, a text such as "commercial partnership with Company X" should be displayed both at the beginning of the video and at the top of the description box underneath it, so that this text is visible without expanding the description box.
Most recently, in January 2018, the Council gave a statement concerning a photograph posted by a Finnish top athlete on Instagram (MEN 4/2018). The photograph showed the athlete skiing with the products of one of their sponsors displayed in the foreground. The caption below the photograph contained information on how those products could be won, as well as several branded hashtags.
According to the sponsor, the athlete had created the post at their own initiative. However, the sponsor conceded that the post was marketing and should have been marked as such.
The Council found the post to be contrary to good practice. According to the Council, if the commercial nature of an Instagram post is not apparent from the photograph itself, the caption below the photograph should begin with an appropriate mention of this. However, such a written mention alone would be insufficient.
According to the Council, because Instagram users often browse photographs without their captions, a photograph posted as part of a commercial partnership should in itself be marked in a way that indicates its commercial nature. The Council did not provide more specific guidance on how this should be done.
Social media users should be able to tell at a first glance that the content they are viewing is commercial in nature. They should also know immediately on whose behalf it has been published. The Consumer Ombudsman and the Council have taken a strict view on what type of indications are necessary in order to meet these requirements – to some extent stricter than that taken, for example, by the Swedish Patent and Market Court in a recent judgment concerning influencer marketing.
At least insofar as B2C marketing is concerned, a single mention of a commercial partnership will probably be insufficient. Instead, when the platform being used enables multiple means of communication, information on the commercial partnership should be communicated through all of these means using unambiguous wording, such as "commercial partnership with Company X". Care should be taken to ensure that this information is visible even when the content is shared on other platforms.
By law, a company is generally always liable for the marketing of its products, even if that marketing has been carried out by a third party, such as an influencer. Therefore, in order to minimise exposure to liability risks, companies engaging in commercial partnerships with influencers – whether directly or through an influencer network – should make sure that those influencers receive and abide by clear guidelines on how the partnership should be disclosed.
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