On 28 September, 2021, the President of Office of Competition and Consumer Protection (“UOKiK”) launched a preliminary inquiry into market influencer activities. UOKiK intends to determine whether activities of entities that post advertising content on social networking sites such as Instagram, Facebook, and TikTok might be misleading for consumers with regard to the way in which advertising content is presented on those sites. Among the reasons why influencers and the advertising agencies representing them have come under scrutiny is complaints by consumers regarding scams. This is a term used for a dishonest way of publicly praising products of doubtful quality or of an exorbitant price. Measures taken by regulators in other European countries such as the UK or France are also a factor in the launching of the inquiry. The measures in those countries are intended to regulate or issue guidelines for standards for activities of influencers with regard to identifying advertising, intended to mitigate the risk of consumers being misled.

For many people in the influencer’s audience, the influencer’s activity is associated with fun that is provided free of charge. A favorite content creator can be followed on their channel and it is possible to communicate with them, and listen to their recommendations or tips in the same way as a good friend. According to the first Marketing Influencer Handbook on the Polish market[1] – published at the end of October this year by the working group IAB Polska – influencers should be defined simply as people who ‘exert an influence’ on the community around them due to and by way of content posted on their social media profiles. Meanwhile, so that the work of such influencers is not merely a hobby and can be done on a professional level, they frequently seek sponsors for their activities. Due to support obtained in this way, the produced content can continue to be free of charge for society, and the influencer can devote more time to producing that content and not worry too much about the cost.

It needs to be borne in mind, however, that the activity, and essentially the influencer’s existence, is founded on the trust placed in them by their target audience. For this reason, cryptoadvertising in this sector involves great risk, as this risk is twofold. It can result not only in a severe fine being imposed on the undertaking of that kind by the President of UOKiK, but also a loss of target audience. This can happen when it is not expressly stated in published material that the viewer – consumer is dealing with promotion of a product or service for which the influencer received payment[2]. In turn, under art. 16(1)(4) of the Act on combating unfair competition[3], making a statement of encouragement to purchase goods or services while creating the impression of neutral information is an act of unfair competition with respect to advertising. This is also why the inquiry instigated by UOKiK is intended to focus on examining whether influencers identify advertising or sponsored content in their posts. In this context, agreements between influencers and advertisers or advertising agencies are being examined carefully as to whether they provide for restrictions of guidelines of any kind concerning the way in which advertising or sponsored content is identified.

There is no doubt that influencers need to start being mindful today of the responsibility they have for the message they convey to their audience, who are often fascinated by their activities. A publication must state clearly and unequivocally which material on a profile is advertising, and which material is their individual and independent opinion. Although they have been on the influencer marketing market for a number of years, content creators still do not identify advertising in their posts, or do not do so properly. This situation is probably principally due to lack of awareness, both of the obligations they have and of how to translate general guidelines in the law into specific measures.

Since UOKiK launched the inquiry, significantly more content identified as sponsored has appeared on social media. This can be seen at the first results of UOKiK’s measures even at the outset. It may however be too early for rejoicing, because in addition to the fear of penalties there is a new problem of how to identify content without undermining the quality and reach of posted content. The tools provided by the main social media platforms consider content identified in this way to be less attractive, and this has a direct effect on content creators.

UOKiK and the advertising industry do not have an easy task – to devise systems that protect consumer interests on one hand and limit the chances of them being misled, but which on the other hand are not too onerous for the audience or render content less attractive due to advertising identification standards being too rigorous. In view of the rapid rate of development and the increasingly important role of influencer marketing, mechanisms for ongoing revision of markings that exist and are used in trade, and for a rapid response to new problems on the market, also need to be provided for.

[1] https://www.iab.org.pl/wp-content/uploads/2021/10/INFLUENCER-MARKETING_poradnik-IAB-Polska-2021.pdf

[2] Art. 7(11) of the Act of 23 August 2007 on combating unfair commercial practices (consolidated text, Journal of Laws of 2017, item 2070)

[3] Act of 16 April 1993 on combating unfair competition (consolidated text, Journal of Laws of 2020, item 1913)