In early October, the Belgian Advertising Council announced a “Recommendation for Online Influencer Marketing”. This text should provide clarity after the FPS Economy in May published a document on its own initiative, which received rather heavy criticism. The criticism came mainly because there was no consultation with the sector. In the meantime the Council itself organized consultations with the sector to come to these recommendations.
We analyzed the main lines and give you the important takeaways from the Influencer Guidelines.
Self regulatory code
The new Influencer Guidelines are not a legally binding set of rules, They have not (yet) been incorporated into a law or regulation and for the time being, they are no more than guidelines, that have been drafted and subsequently adhered to by relevant parties across the industry (influencers, all members of the Belgian Advertising Council and the Belgian Federation of Web Professionals FeWeb) to provide practical guidelines on how, when and what to disclose when engaging in influencer marketing on any social media channel.
The parties involved agreed on the principle of self-regulation, with the Jury for Ethical Practices in Advertizing (known as “JEP”) as supervising authority for compliance with the Guidelines.
The recommendation aims to regulate the field of online influencer marketing. The rules are designed to better protect the consumer on the one hand and to provide legal certainty for advertisers and influencers on the other.
The code applies whenever an online influencer 1) receives a certain compensation for distributing a message and 2) that message is mainly controlled by the advertiser. As soon as both cumulative conditions are met, there is question of online influencer marketing under the code.
In this context, the reimbursement for the influencer can be both in cash or in any other advantage or award, such as the free use of a certain product or service, a free hotel stay, …
What is essential, is that the advertiser has a significant control over the influencer’s message of the influencer. This control can exist in detailed guidelines, text reviewing or editing, footage editing, rating or reviewing of a vlogger’s content, …
Every communication with a commerical intention has to be clearly recognizable as such and should be “fair”.
This can be achieved by:
- an explicit and textual statement that the message concerns a commercial communication
- the context in which the online message is published which makes it clear that it concerns a commercial communication
- brand or logo notification that makes clear that it concerns a commercial communication
The message may under no circumstance mislead the target group with false statements, incorrect information, nor should it directly encourage children to persuade their parents or other adults to buy products for them.
First of all, online influencers have to reveil their commercial relationship with the provider of the products that they are promoting in a clear and visible or audible way. This can be achieved by mentioning on of the following words: “advertising”, “publicity”, “sponsorship”, “promotion”, “sponsored by”, “in collaboration with” or by the use of hashtags such als #pub #publ #adv, #spon or #prom. These warnings and/or hashtags should be adapted according to the language of the expected target audience (#pub for French audiences, #adv in Dutch or English).
Who is responsible?
The person who distributes the message, namely the influencer, is responsible for infringements of the recommendations. In addition, the company that commissioned the placing of the message, the networks, the agencies, etc. can also be held responsible. In other words, anyone who is in the chain of spreading the message can be held responsible for infringements.
The Jury for Ethical Practices in Advertizing will enforce the sector code. It’s decision are not binding, but have a strong moral and ethical value and are often conceived as actually binding by advertizers.
In case of non-compliance with these Influencer Guidelines, the JEP may request an advertizer or an influencer, just as it would wioth any other advertisement campaign, to change and even to cancel a campaign.
Important to know is that the JEP also renders preventive advise and consultations. When in doubt about the validity of a campaign, advertizers can submit a request for advice to the JEP.
In parallel, the Belgian Federal gouvernment is said to be finalizing a draft Bill on advertising and online influencers. Although the texts of this bill are not public yet, thev rules are expected to be somewhat stricter than the Belgian Advertizing Council’s sector code. The first draft text of the said bill should become public in just a few weeks time. We will of course keep you updated.
Questions concerning advertisement law or internet law?
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