Influencer and Advertising: a problematic relationship

6 août 2018

  • Italie
  • Médias

The relationship between influencers and advertising is one of the most interesting topic of the recent years, and one to which many operators in the sector are devoting energy and money.

In this article we will return to talk about the legal problems that influencer marketing makes it necessary to analyze.

There are many problematic profiles that can arise from the activity of influencers, pursuant to a fundamental principle of advertising discipline: any form of commercial communication and/or advertising must clearly be recognizable as such.

It is known that influencers, thanks to the reputation they have on social network, Instagram among all, are often paid to post pictures that portray them along with products given for free companies that have sponsored the post itself. The situation described can well be considered as a real advertising activity, considering that there is an individual that receive remuneration for promoting a product to the community. However, in the sponsored post there is no mention of the fact that the activity carried out by influencers is a genuine and effective advertising activity: the influencers simply post the picture and describe the product , obviously in a positive way, as if it were “a private story in the style of Instagram » (injunction of the Italian Advertising Self-Regulatory Institute (IAP) Control Committee no. 57/2018).

It is certainly on the basis of these considerations that, in the last two months, we have assisted to a real crackdown in the IAP, the Italian Advertising Self-Regulatory Institute (“Istituto di Auto-disciplina Pubblicitaria). The IAP Control Committee notified many influencers, as well as the companies producing the good displayed in the sponsored posts, injunctions aimed at inhibiting the publication of certain posts released by the influencers themselves.

The common element of all these injunctions is the criticism of a behavior that showed a purely advertising activity as if it were a spontaneous choice of the influencer. This circumstance leads to a situation in which, using the words of the IAP injunction No 61/2018 of 14 June 2018, there are “communication conveying eminently promotional content of the product and the brand in question, that is however not sufficiently explicit and therefore not immediately recognisable to the public”.

In fact, what is being contested in the above-mentioned injunctions, but also in others, such as in the injunction no. 51/2018, is the violation of art. 7 of the Italian Marketing Communication Self-Regulation Code (“Codice di auto-disciplina pubblicitaria). The code is the source of the above-mentioned principle that states that any form of commercial communication must always be recognisable as such. Furthermore, the Code says that « in the means and forms of commercial communication in which contents and information of other kinds are disseminated, commercial communication must be clearly distinguished by means of appropriate measures« .

The measures taken by the Control Committee involve not only influencers, but also companies, as the latter actually benefit from an activity that can be considered a form of surreptitious advertising.

Please, allow me a note.

Take for example the injunction no. 50/2018, regarding two Instagram’s posts of the influencer Chiara Nasti, that portrayed her with products marked with the trademark « Sunsilk »: having noted that the two posts of Nasti’s Instagram profile violated the above-mentioned art. 7 of the Italian Marketing Communication Self-Regulation Code, the injunction states the essential need for  « transparency of communications« , that allows an effective distinction, and not a merely formal one, of promotional communications from any other type of communication.

Analyzing the guidelines elaborated on this matter by the IAP, the so-called « Digital Chart », it results that it is considered compliant for the purpose of the recognition of an advertising communication as such, that a post on Instagram or on another social network presents the hashtag #advertising, or even simply the hashtag #ad.

In this respect, the IAP’s guidelines may leave a little baffled. In fact, while recognizing that the choice in question is an attempt to mediate between the need to protect the consumer and the activity of influencer, it is legitimate to doubt about the effectiveness of the hashtag #ad. As a matter of fact, it is reasonable to doubt that the hashtag #ad, written under a picture on a social network, is in itself suitable to make it clear to the user and to the average consumer that the post ha an advertising message. In fact, it can be assumed that many users do not know that the term « ad » is the abbreviation for « advertising », especially considering that the average user of influencers is represented by young people aged between 14 and 18 years. In a nutshell, the hashtag #ad would be able to “disguise” the advertising activity.

On the other hand, the Italian Competition Authority (AGCM – Autorità Garante della Concorrenza e del Mercato) and some German judges (and the German legal system is known to be particularly attentive to new technologies law) also reached these conclusions. In this respects, it is worth reading the Case 13 U 53/17 of the Celle Higher Regional Court, that concerns to precisely the hashtag #ad and reaches conclusions similar to those mentioned above.

It should also be noted that, so far, it has been mentioned the Italian Marketing Communication Self-Regulation Code, a regulatory text issued by the IAP, whose injunctions or decisions bind exclusively the companies adhering to its system of self-regulation.

However, it is clear that, in cases such as those described above, is applicable a specific Italian legislation, the so-called Consumer Code (Legislative Decree no. 206/2005 – Codice del Consumo), Furthermore, surreptitious advertising violates the prohibition of misleading and unfair commercial practices, as stated in various articles of the Consumer Code.

The consequences are relevant, because the Consumer Code and its Implementing Regulations implicate the intervention of the Italian Competition Authority (AGCM) or the Italian Regulatory Authority for Communications (Agcom – Autorità Garante per le Comunicazioni), both having sanctioning powers toward any person (with particular reference to financial sanctions).

What arises from this brief examination is that this phenomenon is particularly interesting and widespread throughout the world.

The author of this post is Elena Carpani.

“Influencer Marketing” is a very well known topic to the jurists and operators of the advertising sector dealing with commercial communication.

There is a core principle in communication law: any form of commercial communication shall be clearly recognizable as such.

Before the diffusion of digital communication and, along with it, the proliferation of the so-called « Influencer Marketing », the issue of recognizability of commercial communication was generally discussed when evaluating whether an advertising content was clearly distinguishable from a journalistic or an informative content (such is the longstanding issue regarding the advertorial).

For a short period of time there was a debate regarding the so-called subliminal advertising, which eventually fell into oblivion.

The necessity to point out to the consumer whether the appreciation for a product or a service shown by a well-known person – precisely an “Influencer” – (i.e. the endorsement) is genuine or not has become a much encountered and controversial topic.

It shall not be considered as spontaneous when an individual receives remuneration for wearing a fashion item, for using a smartphone, or simply when he/she receives as a gift the products that he/she promotes or other valuable products.

It is clear and proven that the spontaneous choice of an “idol” by the public has a bigger impact on these same people rather than any traditional way of advertising. Hence the abuse of surreptitious advertising on the less easily monitored channel: the web, precisely.

What measures should be taken to ensure that the consumers can understand clearly whether a post is subject of a contract or not?

The answer would be very simple.

It would be enough to require the sponsored post to contain, in clearly visible characters, terms as “Advertisement”, “Sponsored by”, “Commercial agreement” or similar notices.

In Italy, in absence of a law regulating specifically the matter, both the Istituto della Pubblicità (Italy’s Advertising Self-Regulatory Institute) and the Autorità Garante della Concorrenza e del Mercato (the Competition Authority) have expressed their opinion on this subject.

In the Italian Advertising Self-Regulatory Institute’s digital chart it is written: “in order to make the promotional nature of content posted on social media and content sharing sites recognizable, celebrities/influencers/bloggers must at the top of their post state in a clearly distinguishable manner the words: “Pubblicità/Advertising”, or “Promosso da … brand/Promoted by…brand” or “Sponsorizzato da…brand/Sponsored by…brand” or “in collaborazione con …brand” or “in partnership with the …brand”; and/or within the first three hashtags (#) use one of the following terms: “#Pubblicità/#Advertising”, or “#Sponsorizzato da … brand/#Sponsored by the … brand “ or “#ad” along with “#brand”.

In a press release of 2017 the Italian Competition Authority has required the addressees the use of the following warnings to be placed below the post together with the others hashtags (#), such as “#sponsored, #advertising, #paidad”, or, in the case of products given for free to the celebrity, “#productsuppliedby”; in particular, all these wordings should be followed by the name of the specific brand being advertised.

However, browsing the Instagram’s pages of various Influencers, it is noticeable that only a few of them are actually using the indications provided by the authorities.

And when it happens to came across Instagram’s profiles that use such indications, it is noticeable that the hashtag that is most commonly used is “#ad”, whose effectiveness (especially in Italy where terms such as “advertising”, “Adv” and, even more so, “ad” are not easily decipherable by the average consumer) raises many concerns.

So far the Italian Competition Authority intervened sending moral suasion letters to some of the main influencers and companies producing the branded goods displayed in the posts, but still no self-regulatory, administrative or state measures have been taken.

The same situation of uncertainty is likely to be found in other countries (here you can find a previous Legalmondo post on this topic in Germany: https://www.legalmondo.com/2017/11/germany-product-placement-influencer-marketing/), with the consequence that international companies are operating in an unclear context, in which it is difficult to identify what are the risks arising from behaviours considered as unlawful.

I have therefore decided to write this article in order to assess the state of Influencer Marketing in Italy and in other countries and get a better understanding of the regulations in force, the measures/judgments issued by the competent Authorities, the international trends and the best practices that could be adopted by international companies.

Since I am one of the founders of the Digital Adv Lab – an interdisciplinary observatory that studies the legal implications of marketing and digital communication initiatives – I am interested in getting in touch with all the readers involved in this topic: please feel free to enter a comment and/or contact me.

The author of this post is Elena Carpani.

According to Italian Copyright Law and to different European countries legislations, advertising creations and campaigns are not protected by copyright.

Articles 1 and 2 of the Italian Copyright Law list many copyrighted works but do not include advertising claims and creations, even through a broad legal interpretation.

The Italian Advertising Self-Regulatory Code (Codice di Autodisciplina della Comunicazione Commerciale, hereinafter the “Code”) and the Italian Self-Regulatory Jury (hereinafter, the “Jury”) should overcome such legal gap.

Article 13 of the Code provides the following:

“Art. 13 – Imitation, Confusion and Exploitation

Marketing communication should not copy or slavishly imitate that of others even if it concerns non-competitive products, especially if there is the risk of generating confusion with the marketing communication of others.

Moreover, any exploitation of the name, trademark, notoriety and corporate image of other marketers should be avoided, if it is intended to generate an undue advantage.”

According to the Jury case law, which often applied art. 13 of the Code, it is clear that there are two requirements for and advertising in order to obtain a legal protection: novelty and originality.

It is new an idea which has never been used or it is not in the consumers’ memory.

It is original an idea which consists in a significant creative effort.

Advertising campaigns that use stereotypes are not original, thus they are not protected by law: e.g. the idea consisting in a side-by-side comparison of two dishes in order to show a detergent effectiveness.

Another principle consists in the balance between originality and protection against imitation: the more an advertising is original (id est, it is not descriptive of the advertised product), the more it is protected against similar advertisings.

Art. 13 of the Code protects both the “heart” (the idea) of an advertising campaign and the form: so, if an advertising has a different heart and an identical claim or form compared to a previous one, it infringes art. 13 of the Code.

The Jury case law stated over the years a fundamental principle: when there is an identical copy of an idea or a claim of a third party (particularly if by a competitor), the originality degree required by the first advertising in order to obtain a legal protection is almost null.

Even simple and ordinary ideas can be protected under art. 13 of the Code if they are slavishly imitated, particularly by a competitor which sells product of the same category.

The Jury, in its decision n. 5/2018, seems to have changed its orientation on the matter, especially concerning the requirements of novelty and relevant imitation.

The decision concerned two competitors in the fruit and vegetable sectors: La Linea Verde (owner of the trademark “Dimmidisì” (say yes to me) and manufacturer of product labelled by such mark) and Del Monte.

La Linea Verde started to use the claim “Tutti dicono di sì” (all say yes) at the beginning of 2017 in various online and paper campaigns and in a trade fair.

After a few months (October 2017) Del Monte started to use the claim “Tutti dicono sì” (all say yes – with a slightly different wording) in its advertising campaigns.

Thus, La Linea Verde sent to Del Monte a cease and desist letter and later filed a complaint before the Jury claiming the infringement of art. 13 of the Code.

In the decision, the Jury:

  1. after stating that the claims “Tutti dicono di sì” e “Tutti dicono sì” are identical, both by the form (the word “di” is not relevant) and by the content, because both the claims suggest adhesion to the products by the consumer;
  2. after stating that La Linea Verde has a prior use of the claim and stating that the publishing of the claim on the web and on a trade fair, even if not reported on an advertising search engine (like Easy Way), are appropriate in order to prove the prior use of a claim;
  • after stating that the claim has never been used in that market and in different markets in the past decade;

the Jury eventually stated that Del Monte slogan has to be considered “a logical development of an advertising idea that Del Monte, undeniably, has been proposed for a long time”, referring to the ’80s and ’90s popular advertising “L’uomo Del Monte ha detto sì” and to the less popular “Sì al meglio, sì a Del Monte”.

The Jury stated that, even if there is a formal overlapping between the claims, the advertisings have their own aspects and they cannot be overlapped in the consumer’s perception (and, in my opinion, this is contradictory, because the Jury previously recognized in the same decision that the claims had the same meaning: suggesting the adhesion to the products by the consumer).

It seems this is a change of course by the Jury concerning claim imitation and likelihood of confusion (art. 13). The Jury stated that it is possible to use two identical (form and content) claims, both original, because there is “a logical development” between an expression (“Tutti dicono sì”) and a communicative path (“to say yes” by Del Monte).

It is a change of course that, in the future, may create some problems to creative directors and lawyers: it will not be sufficient to monitor if a claim has been already used by third parties, but it will be necessary to check if an advertising is “a logical development” of a different communication by a third party. This would result in a subjective judgment which affects the fundamental legal certainty principle.

The author of this post is Elena Carpani.

These days, influencer marketing is an indispensable part of virtually any marketing strategy. The attention gained through influencer marketing has recently been a subject of discussion among the competition associations as well.

As a forerunner, the Association of Social Competition seems prepared to take a closer look at the topic, as indicated by several media statements. According to its general manager Angelika Lange, the association has already issued warnings to several dozen influencers (https://www.wuv.de/marketing/die_influencer_jaeger ).

The association does not shy away from litigation, either. Following Celle Higher Regional Court’s decision on the external presentation of influencer advertising in June 2017, Hagen Regional Court (September 13, 2017 – Case 23 O 30/17) dealt not only with the external presentation but also with the content of an influencer’s statements.

Influencer Scarlett Gartmann is said to have advertised various products on her Instagram account without marking the content or individual sections as “advertising” (“Anzeige”) or “promotion” (“Werbung”). Hagen Regional Court, like Celle Higher Regional Court, considered this a violation of the marking obligations under competition law.

While this decision was to be expected, what is noteworthy is the component that deals with the content. The regional court obviously also had to decide on the use of the term detox by the influencer, which the Court considered a “health claim” in combination with the drink that was advertised by means of a photograph. Such a claim would not be permitted, however, which is why another prohibition claim against the influencer existed.

Practical tip

Particularly in areas that are sensitive to regulatory requirements, such as food law or medical device law, influencers and companies that are commissioning influencers should check in advance whether certain statements can actually be made as planned. Even though the external form can be preserved relatively easily by marking the text as “advertising” or “promotion,” there may be considerable and costly warning potential when the content of statements is examined, which the competition associations increasingly seem intent on exploiting.

The author of this post is Ilja Czernik.

The eSports sector is growing rapidly as illustrated by the following figures:

In 2017, the eSports economy grew to US-$696 million, a year-on-year growth of 41.3%.

Brands invested $517 million in 2017, which is expected to double by 2020.

Worldwide, the global eSports audience reached 385 million in 2017, with 191 million regular viewers.

(cf. https://newzoo.com/insights/trend-reports/global-esports-market-report-2017-light/)

North America continues to be the largest eSports market with revenues of US-$257 million. There is also continual development of eSports in Germany, however. The professional soccer teams of VfL Wolfsburg and FC Schalke 04 have their own eSports teams (http://www.gameswirtschaft.de/sport/esports-fussball-bundesliga/), and the German eSports Federation Deutschland has recently been founded, with the Federal Association of Interactive Entertainment Software (BIU) as a founding member (http://www.horizont.net/marketing/nachrichten/ESBD-E-Sport-Bund-Deutschland-geht-an-den-Start-162957).

In areas where such a lot of money can be made, legal obstacles are never far away. Here, they comprise a wide range of all kinds of different topics.

The initial focus is on copyrights and ancillary copyrights. Soccer stadiums, buildings, and avatars may enjoy copyright protection just as much as the computer program on which the games are based. Another item of discussion is whether eAthletes are to be classified as “performing artists” in accordance with Section 73 German Copyright Act. In addition, the question arises as to who enjoys ancillary copyrights under Section 81 Copyright Act as organizer of eSports events and whether such organizers have the same domiciliary rights as the organizers of a regular sports event.

In terms of trademark and design law, it will have to be discussed to what extent products and brand images represent infringements of the Trademark Act and the Design Act. In the case of brands and trademarks in particular, the question will be to what extent they are design objects or indications of origin.
Finally, there will also be regulatory issues that need to be observed. In addition to the use of cheatbots and doping substances, the main focus will be on the protection of minors and the Interstate Broadcasting Treaty with its advertising restrictions.
In conclusion, one suggestion: keep an eye on the eSports movement! Companies that want to stay ahead of the curve, should deal with the aforementioned issues and all further questions in timely manner.

The author of this post is Ilja Czernik.

Influencer marketing is the trend in today’s world of advertising. Even though it is obvious that influencer marketing must observe the framework of applicable statutory provisions, the market has long been uncertain about how influencer posts are to be drafted in order to be legally compliant. The current decision of Celle Higher Regional Court (June 08, 2017 – Case 13 U 53/17) offers at least some clarity.

The judgment was issued in relation to an action for injunction by the German Association for Social Competition (Verband Sozialer Wettbewerb) against a German drugstore chain. A 20-year-old Instagram star with 1.3 million followers had advertised the drugstore chain in one of her posts. The post was only marked as advertisement at the bottom with the hashtag “#ad,” which additionally only came second in a list of six hashtags.

Celle Higher Regional Court adjudged that this type of marking was insufficient. The court requested that the commercial purpose of an Instagram post would have to be apparent at first sight. It did not consider use of the hashtag “#ad” in a “hashtag cloud” to be sufficient to mark the post as advertising.

The court left expressly open, however, whether the use of the hashtag “#ad” is generally suitable to mark advertising posts.

The state media authorities (Landesmedienanstalten) already reacted to the judgment, however, and revised their joint guide on advertising issues in social media. It now reads: “When marking a post as PROMOTION (Werbung) or ADVERTISING (Anzeige), you will be on the safe side – that much is certain. […] At the current time, we cannot recommend marking posts as #ad, #sponsored by, or #powered by.” In the future, Instagram itself intends to provide for more transparency on the platform by comprehensibly identifying advertising posts. It is currently testing the introduction of a branded content tool in Germany to make it easier for users to recognize posts as paid advertising.

Practical tip

Advertising posts in social media should always be marked as “promotion” or “advertising” at the beginning of the posts unless their commercial purpose arises directly from the circumstances. Advertisers are also advised to obligate influencers contractually to such legally compliant marking of posts, since the influencers’ behavior may be attributed to the company, as is clearly shown by the recent judgment of Celle Higher Regional Court against the drugstore chain.

The author of this post is Ilja Czernik.

Influencer Marketing project

28 mai 2018

  • Italie
  • Contrats
  • Médias

The relationship between influencers and advertising is one of the most interesting topic of the recent years, and one to which many operators in the sector are devoting energy and money.

In this article we will return to talk about the legal problems that influencer marketing makes it necessary to analyze.

There are many problematic profiles that can arise from the activity of influencers, pursuant to a fundamental principle of advertising discipline: any form of commercial communication and/or advertising must clearly be recognizable as such.

It is known that influencers, thanks to the reputation they have on social network, Instagram among all, are often paid to post pictures that portray them along with products given for free companies that have sponsored the post itself. The situation described can well be considered as a real advertising activity, considering that there is an individual that receive remuneration for promoting a product to the community. However, in the sponsored post there is no mention of the fact that the activity carried out by influencers is a genuine and effective advertising activity: the influencers simply post the picture and describe the product , obviously in a positive way, as if it were “a private story in the style of Instagram » (injunction of the Italian Advertising Self-Regulatory Institute (IAP) Control Committee no. 57/2018).

It is certainly on the basis of these considerations that, in the last two months, we have assisted to a real crackdown in the IAP, the Italian Advertising Self-Regulatory Institute (“Istituto di Auto-disciplina Pubblicitaria). The IAP Control Committee notified many influencers, as well as the companies producing the good displayed in the sponsored posts, injunctions aimed at inhibiting the publication of certain posts released by the influencers themselves.

The common element of all these injunctions is the criticism of a behavior that showed a purely advertising activity as if it were a spontaneous choice of the influencer. This circumstance leads to a situation in which, using the words of the IAP injunction No 61/2018 of 14 June 2018, there are “communication conveying eminently promotional content of the product and the brand in question, that is however not sufficiently explicit and therefore not immediately recognisable to the public”.

In fact, what is being contested in the above-mentioned injunctions, but also in others, such as in the injunction no. 51/2018, is the violation of art. 7 of the Italian Marketing Communication Self-Regulation Code (“Codice di auto-disciplina pubblicitaria). The code is the source of the above-mentioned principle that states that any form of commercial communication must always be recognisable as such. Furthermore, the Code says that « in the means and forms of commercial communication in which contents and information of other kinds are disseminated, commercial communication must be clearly distinguished by means of appropriate measures« .

The measures taken by the Control Committee involve not only influencers, but also companies, as the latter actually benefit from an activity that can be considered a form of surreptitious advertising.

Please, allow me a note.

Take for example the injunction no. 50/2018, regarding two Instagram’s posts of the influencer Chiara Nasti, that portrayed her with products marked with the trademark « Sunsilk »: having noted that the two posts of Nasti’s Instagram profile violated the above-mentioned art. 7 of the Italian Marketing Communication Self-Regulation Code, the injunction states the essential need for  « transparency of communications« , that allows an effective distinction, and not a merely formal one, of promotional communications from any other type of communication.

Analyzing the guidelines elaborated on this matter by the IAP, the so-called « Digital Chart », it results that it is considered compliant for the purpose of the recognition of an advertising communication as such, that a post on Instagram or on another social network presents the hashtag #advertising, or even simply the hashtag #ad.

In this respect, the IAP’s guidelines may leave a little baffled. In fact, while recognizing that the choice in question is an attempt to mediate between the need to protect the consumer and the activity of influencer, it is legitimate to doubt about the effectiveness of the hashtag #ad. As a matter of fact, it is reasonable to doubt that the hashtag #ad, written under a picture on a social network, is in itself suitable to make it clear to the user and to the average consumer that the post ha an advertising message. In fact, it can be assumed that many users do not know that the term « ad » is the abbreviation for « advertising », especially considering that the average user of influencers is represented by young people aged between 14 and 18 years. In a nutshell, the hashtag #ad would be able to “disguise” the advertising activity.

On the other hand, the Italian Competition Authority (AGCM – Autorità Garante della Concorrenza e del Mercato) and some German judges (and the German legal system is known to be particularly attentive to new technologies law) also reached these conclusions. In this respects, it is worth reading the Case 13 U 53/17 of the Celle Higher Regional Court, that concerns to precisely the hashtag #ad and reaches conclusions similar to those mentioned above.

It should also be noted that, so far, it has been mentioned the Italian Marketing Communication Self-Regulation Code, a regulatory text issued by the IAP, whose injunctions or decisions bind exclusively the companies adhering to its system of self-regulation.

However, it is clear that, in cases such as those described above, is applicable a specific Italian legislation, the so-called Consumer Code (Legislative Decree no. 206/2005 – Codice del Consumo), Furthermore, surreptitious advertising violates the prohibition of misleading and unfair commercial practices, as stated in various articles of the Consumer Code.

The consequences are relevant, because the Consumer Code and its Implementing Regulations implicate the intervention of the Italian Competition Authority (AGCM) or the Italian Regulatory Authority for Communications (Agcom – Autorità Garante per le Comunicazioni), both having sanctioning powers toward any person (with particular reference to financial sanctions).

What arises from this brief examination is that this phenomenon is particularly interesting and widespread throughout the world.

The author of this post is Elena Carpani.

“Influencer Marketing” is a very well known topic to the jurists and operators of the advertising sector dealing with commercial communication.

There is a core principle in communication law: any form of commercial communication shall be clearly recognizable as such.

Before the diffusion of digital communication and, along with it, the proliferation of the so-called « Influencer Marketing », the issue of recognizability of commercial communication was generally discussed when evaluating whether an advertising content was clearly distinguishable from a journalistic or an informative content (such is the longstanding issue regarding the advertorial).

For a short period of time there was a debate regarding the so-called subliminal advertising, which eventually fell into oblivion.

The necessity to point out to the consumer whether the appreciation for a product or a service shown by a well-known person – precisely an “Influencer” – (i.e. the endorsement) is genuine or not has become a much encountered and controversial topic.

It shall not be considered as spontaneous when an individual receives remuneration for wearing a fashion item, for using a smartphone, or simply when he/she receives as a gift the products that he/she promotes or other valuable products.

It is clear and proven that the spontaneous choice of an “idol” by the public has a bigger impact on these same people rather than any traditional way of advertising. Hence the abuse of surreptitious advertising on the less easily monitored channel: the web, precisely.

What measures should be taken to ensure that the consumers can understand clearly whether a post is subject of a contract or not?

The answer would be very simple.

It would be enough to require the sponsored post to contain, in clearly visible characters, terms as “Advertisement”, “Sponsored by”, “Commercial agreement” or similar notices.

In Italy, in absence of a law regulating specifically the matter, both the Istituto della Pubblicità (Italy’s Advertising Self-Regulatory Institute) and the Autorità Garante della Concorrenza e del Mercato (the Competition Authority) have expressed their opinion on this subject.

In the Italian Advertising Self-Regulatory Institute’s digital chart it is written: “in order to make the promotional nature of content posted on social media and content sharing sites recognizable, celebrities/influencers/bloggers must at the top of their post state in a clearly distinguishable manner the words: “Pubblicità/Advertising”, or “Promosso da … brand/Promoted by…brand” or “Sponsorizzato da…brand/Sponsored by…brand” or “in collaborazione con …brand” or “in partnership with the …brand”; and/or within the first three hashtags (#) use one of the following terms: “#Pubblicità/#Advertising”, or “#Sponsorizzato da … brand/#Sponsored by the … brand “ or “#ad” along with “#brand”.

In a press release of 2017 the Italian Competition Authority has required the addressees the use of the following warnings to be placed below the post together with the others hashtags (#), such as “#sponsored, #advertising, #paidad”, or, in the case of products given for free to the celebrity, “#productsuppliedby”; in particular, all these wordings should be followed by the name of the specific brand being advertised.

However, browsing the Instagram’s pages of various Influencers, it is noticeable that only a few of them are actually using the indications provided by the authorities.

And when it happens to came across Instagram’s profiles that use such indications, it is noticeable that the hashtag that is most commonly used is “#ad”, whose effectiveness (especially in Italy where terms such as “advertising”, “Adv” and, even more so, “ad” are not easily decipherable by the average consumer) raises many concerns.

So far the Italian Competition Authority intervened sending moral suasion letters to some of the main influencers and companies producing the branded goods displayed in the posts, but still no self-regulatory, administrative or state measures have been taken.

The same situation of uncertainty is likely to be found in other countries (here you can find a previous Legalmondo post on this topic in Germany: https://www.legalmondo.com/2017/11/germany-product-placement-influencer-marketing/), with the consequence that international companies are operating in an unclear context, in which it is difficult to identify what are the risks arising from behaviours considered as unlawful.

I have therefore decided to write this article in order to assess the state of Influencer Marketing in Italy and in other countries and get a better understanding of the regulations in force, the measures/judgments issued by the competent Authorities, the international trends and the best practices that could be adopted by international companies.

Since I am one of the founders of the Digital Adv Lab – an interdisciplinary observatory that studies the legal implications of marketing and digital communication initiatives – I am interested in getting in touch with all the readers involved in this topic: please feel free to enter a comment and/or contact me.

The author of this post is Elena Carpani.

According to Italian Copyright Law and to different European countries legislations, advertising creations and campaigns are not protected by copyright.

Articles 1 and 2 of the Italian Copyright Law list many copyrighted works but do not include advertising claims and creations, even through a broad legal interpretation.

The Italian Advertising Self-Regulatory Code (Codice di Autodisciplina della Comunicazione Commerciale, hereinafter the “Code”) and the Italian Self-Regulatory Jury (hereinafter, the “Jury”) should overcome such legal gap.

Article 13 of the Code provides the following:

“Art. 13 – Imitation, Confusion and Exploitation

Marketing communication should not copy or slavishly imitate that of others even if it concerns non-competitive products, especially if there is the risk of generating confusion with the marketing communication of others.

Moreover, any exploitation of the name, trademark, notoriety and corporate image of other marketers should be avoided, if it is intended to generate an undue advantage.”

According to the Jury case law, which often applied art. 13 of the Code, it is clear that there are two requirements for and advertising in order to obtain a legal protection: novelty and originality.

It is new an idea which has never been used or it is not in the consumers’ memory.

It is original an idea which consists in a significant creative effort.

Advertising campaigns that use stereotypes are not original, thus they are not protected by law: e.g. the idea consisting in a side-by-side comparison of two dishes in order to show a detergent effectiveness.

Another principle consists in the balance between originality and protection against imitation: the more an advertising is original (id est, it is not descriptive of the advertised product), the more it is protected against similar advertisings.

Art. 13 of the Code protects both the “heart” (the idea) of an advertising campaign and the form: so, if an advertising has a different heart and an identical claim or form compared to a previous one, it infringes art. 13 of the Code.

The Jury case law stated over the years a fundamental principle: when there is an identical copy of an idea or a claim of a third party (particularly if by a competitor), the originality degree required by the first advertising in order to obtain a legal protection is almost null.

Even simple and ordinary ideas can be protected under art. 13 of the Code if they are slavishly imitated, particularly by a competitor which sells product of the same category.

The Jury, in its decision n. 5/2018, seems to have changed its orientation on the matter, especially concerning the requirements of novelty and relevant imitation.

The decision concerned two competitors in the fruit and vegetable sectors: La Linea Verde (owner of the trademark “Dimmidisì” (say yes to me) and manufacturer of product labelled by such mark) and Del Monte.

La Linea Verde started to use the claim “Tutti dicono di sì” (all say yes) at the beginning of 2017 in various online and paper campaigns and in a trade fair.

After a few months (October 2017) Del Monte started to use the claim “Tutti dicono sì” (all say yes – with a slightly different wording) in its advertising campaigns.

Thus, La Linea Verde sent to Del Monte a cease and desist letter and later filed a complaint before the Jury claiming the infringement of art. 13 of the Code.

In the decision, the Jury:

  1. after stating that the claims “Tutti dicono di sì” e “Tutti dicono sì” are identical, both by the form (the word “di” is not relevant) and by the content, because both the claims suggest adhesion to the products by the consumer;
  2. after stating that La Linea Verde has a prior use of the claim and stating that the publishing of the claim on the web and on a trade fair, even if not reported on an advertising search engine (like Easy Way), are appropriate in order to prove the prior use of a claim;
  • after stating that the claim has never been used in that market and in different markets in the past decade;

the Jury eventually stated that Del Monte slogan has to be considered “a logical development of an advertising idea that Del Monte, undeniably, has been proposed for a long time”, referring to the ’80s and ’90s popular advertising “L’uomo Del Monte ha detto sì” and to the less popular “Sì al meglio, sì a Del Monte”.

The Jury stated that, even if there is a formal overlapping between the claims, the advertisings have their own aspects and they cannot be overlapped in the consumer’s perception (and, in my opinion, this is contradictory, because the Jury previously recognized in the same decision that the claims had the same meaning: suggesting the adhesion to the products by the consumer).

It seems this is a change of course by the Jury concerning claim imitation and likelihood of confusion (art. 13). The Jury stated that it is possible to use two identical (form and content) claims, both original, because there is “a logical development” between an expression (“Tutti dicono sì”) and a communicative path (“to say yes” by Del Monte).

It is a change of course that, in the future, may create some problems to creative directors and lawyers: it will not be sufficient to monitor if a claim has been already used by third parties, but it will be necessary to check if an advertising is “a logical development” of a different communication by a third party. This would result in a subjective judgment which affects the fundamental legal certainty principle.

The author of this post is Elena Carpani.

These days, influencer marketing is an indispensable part of virtually any marketing strategy. The attention gained through influencer marketing has recently been a subject of discussion among the competition associations as well.

As a forerunner, the Association of Social Competition seems prepared to take a closer look at the topic, as indicated by several media statements. According to its general manager Angelika Lange, the association has already issued warnings to several dozen influencers (https://www.wuv.de/marketing/die_influencer_jaeger ).

The association does not shy away from litigation, either. Following Celle Higher Regional Court’s decision on the external presentation of influencer advertising in June 2017, Hagen Regional Court (September 13, 2017 – Case 23 O 30/17) dealt not only with the external presentation but also with the content of an influencer’s statements.

Influencer Scarlett Gartmann is said to have advertised various products on her Instagram account without marking the content or individual sections as “advertising” (“Anzeige”) or “promotion” (“Werbung”). Hagen Regional Court, like Celle Higher Regional Court, considered this a violation of the marking obligations under competition law.

While this decision was to be expected, what is noteworthy is the component that deals with the content. The regional court obviously also had to decide on the use of the term detox by the influencer, which the Court considered a “health claim” in combination with the drink that was advertised by means of a photograph. Such a claim would not be permitted, however, which is why another prohibition claim against the influencer existed.

Practical tip

Particularly in areas that are sensitive to regulatory requirements, such as food law or medical device law, influencers and companies that are commissioning influencers should check in advance whether certain statements can actually be made as planned. Even though the external form can be preserved relatively easily by marking the text as “advertising” or “promotion,” there may be considerable and costly warning potential when the content of statements is examined, which the competition associations increasingly seem intent on exploiting.

The author of this post is Ilja Czernik.

The eSports sector is growing rapidly as illustrated by the following figures:

In 2017, the eSports economy grew to US-$696 million, a year-on-year growth of 41.3%.

Brands invested $517 million in 2017, which is expected to double by 2020.

Worldwide, the global eSports audience reached 385 million in 2017, with 191 million regular viewers.

(cf. https://newzoo.com/insights/trend-reports/global-esports-market-report-2017-light/)

North America continues to be the largest eSports market with revenues of US-$257 million. There is also continual development of eSports in Germany, however. The professional soccer teams of VfL Wolfsburg and FC Schalke 04 have their own eSports teams (http://www.gameswirtschaft.de/sport/esports-fussball-bundesliga/), and the German eSports Federation Deutschland has recently been founded, with the Federal Association of Interactive Entertainment Software (BIU) as a founding member (http://www.horizont.net/marketing/nachrichten/ESBD-E-Sport-Bund-Deutschland-geht-an-den-Start-162957).

In areas where such a lot of money can be made, legal obstacles are never far away. Here, they comprise a wide range of all kinds of different topics.

The initial focus is on copyrights and ancillary copyrights. Soccer stadiums, buildings, and avatars may enjoy copyright protection just as much as the computer program on which the games are based. Another item of discussion is whether eAthletes are to be classified as “performing artists” in accordance with Section 73 German Copyright Act. In addition, the question arises as to who enjoys ancillary copyrights under Section 81 Copyright Act as organizer of eSports events and whether such organizers have the same domiciliary rights as the organizers of a regular sports event.

In terms of trademark and design law, it will have to be discussed to what extent products and brand images represent infringements of the Trademark Act and the Design Act. In the case of brands and trademarks in particular, the question will be to what extent they are design objects or indications of origin.
Finally, there will also be regulatory issues that need to be observed. In addition to the use of cheatbots and doping substances, the main focus will be on the protection of minors and the Interstate Broadcasting Treaty with its advertising restrictions.
In conclusion, one suggestion: keep an eye on the eSports movement! Companies that want to stay ahead of the curve, should deal with the aforementioned issues and all further questions in timely manner.

The author of this post is Ilja Czernik.

Influencer marketing is the trend in today’s world of advertising. Even though it is obvious that influencer marketing must observe the framework of applicable statutory provisions, the market has long been uncertain about how influencer posts are to be drafted in order to be legally compliant. The current decision of Celle Higher Regional Court (June 08, 2017 – Case 13 U 53/17) offers at least some clarity.

The judgment was issued in relation to an action for injunction by the German Association for Social Competition (Verband Sozialer Wettbewerb) against a German drugstore chain. A 20-year-old Instagram star with 1.3 million followers had advertised the drugstore chain in one of her posts. The post was only marked as advertisement at the bottom with the hashtag “#ad,” which additionally only came second in a list of six hashtags.

Celle Higher Regional Court adjudged that this type of marking was insufficient. The court requested that the commercial purpose of an Instagram post would have to be apparent at first sight. It did not consider use of the hashtag “#ad” in a “hashtag cloud” to be sufficient to mark the post as advertising.

The court left expressly open, however, whether the use of the hashtag “#ad” is generally suitable to mark advertising posts.

The state media authorities (Landesmedienanstalten) already reacted to the judgment, however, and revised their joint guide on advertising issues in social media. It now reads: “When marking a post as PROMOTION (Werbung) or ADVERTISING (Anzeige), you will be on the safe side – that much is certain. […] At the current time, we cannot recommend marking posts as #ad, #sponsored by, or #powered by.” In the future, Instagram itself intends to provide for more transparency on the platform by comprehensibly identifying advertising posts. It is currently testing the introduction of a branded content tool in Germany to make it easier for users to recognize posts as paid advertising.

Practical tip

Advertising posts in social media should always be marked as “promotion” or “advertising” at the beginning of the posts unless their commercial purpose arises directly from the circumstances. Advertisers are also advised to obligate influencers contractually to such legally compliant marking of posts, since the influencers’ behavior may be attributed to the company, as is clearly shown by the recent judgment of Celle Higher Regional Court against the drugstore chain.

The author of this post is Ilja Czernik.