#HCA #Compliance #Influencer

The Hungarian Competition Authority (HCA) has recently noticed that some online content and posts do not indicate the fact that the one who published it has received consideration in return. With this information paper the HCA intends to help increase the awareness of consumers by demonstrating how these contents can be published properly in line with international legal practice and guidelines.

These influencers publish online content with the aim of promoting certain brands or images (e.g. supporting blog or vlog posts, posts and videos posted on Facebook, Twitter, Instagram, Snapchat and Youtube). These are not unlawful if the direct economic interest between the advertiser and the promoter is obvious to consumers. It is important that consumers are able to distinguish the independent content from the paid content. The reason for this is that paid content does not show the independent, neutral opinion, style, or spontaneous reflection of the author, or the one who published them. Rather, their economic interests are in the background, therefore it is considered to be an advertisement and can be misleading to consumers. Publishing this online content can be considered to be an unfair commercial practice and can be subject to a procedure of the HCA.

But who is an influencer? An influencer is able to exercise influence over consumers and to shape the views of consumers in the digital environment. They publish online content on their own website, social media platform, or other online platform - irrespective of whether it is his/her own content or it is a post from a guest -, and  they have voracious followers. They are not just public figures, but can even be underage bloggers, vloggers, youtubers etc.

The consideration they receive for the posts may be money, but it also can be other incentives for which one should normally pay consideration. The case when parties provide services mutually for each other ("barter") is also a form of consideration.

The undertaking, in whose interest the sales of a certain product is supported, is responsible for publishing this content. Not just the influencers, but the manufacturers, distributors and the cooperating agencies and offices may also be held liable for this commercial practice.

To comply with the law, it should be indicated in the post that it is paid, sponsored content, in a clear, noticeable, easily understandable and emphasized way. Also, the post should provide a real, actual, credible and fair picture of the product or the service. Furthermore, the business relationship should be marked in the same way on the same platform. In the case of longer content, the mark should clearly appear to consumers without them needing to make any search or take any other actions. The business relationship should be indicated as being directly connected to the concerned content. It should also be noted that different platforms provide different ways of publishing these marks, e.g. there is the "branded content tag" on Facebook.

If there is mainly visual content, only short text content and hashtag signs are used on a certain social media platform (e.g. Instagram), the following marks should be sufficient: #Advertisement, #Advertising, #Paid content, #Sponsored content, and the name and commercial trademark of the concerned company could also be marked. The hashtag relating to the sponsored content should be put first, before every other hashtag.  However, if there is mainly text content posted on the given platform (e.g. Facebook), merely using hashtags is not sufficient. It is not necessary to mark the exact registered name of the company, but the brand name should be marked, maybe together with the trademark of the company.

The following marks are unlikely to make the existence of the business relationship clear for consumers, therefore these are not sufficient in order to comply with the law: #Thankyou #partner, #Promotion. It is also insufficient to publish the business relationship in a hidden form, e.g. in footnotes, or in other parts of the text which are unlikely to be read by consumers. Merely showing a link leading to the website of the advertiser, or merely the name of the company, is not sufficient.

Advertisers are suggested to prepare terms of contract, systems and programs which can ensure that the influencers they are in a business relationship with get familiar with the legal requirements regarding these posts, since they may be held liable for such posts if they have participated in forming the content and the form of them. A monitoring and reporting system should also be considered.