Do you have to mark ads on YouTube, Instagram, in a podcast or a blog?

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When running a blog, a social media profile or a YouTube channel is more just a hobby to you and it allows you to build a growing community, sooner or later you’ll be offered advertising collaboration. Although it can be highly beneficial, at the same time it might force you to deal with the unknown. This means, in particular, legal regulations concerning advertising, which may be unclear for people like you.

I’ll try to give you a broad and easy-to-follow outline of the topic and will recommend you whether (and how) to follow these provisions.

Let’s start with a summary

If you don’t feel like reading the whole article, take a look at the summary below:

 

  1. If you’re a vlogger (and although vlogs are similar to television programmes) you have to comply with the provisions of the Broadcasting Act, including those concerning marking advertisements. However, the latter obligation may be provided for in other laws, too.
  2. If your blog meets the criteria for the press, you have to mark the advertisements and sponsored posts clearly and visibly.
  3. Pursuant to applicable laws, making a product a part of seemingly neutral information (so-called “product placement”) may be considered a hidden advertisement, which is an act of unfair competition.
  4. Practical tips for marking advertisements can be found at the end of this article.

Does a vlogger have to comply with the regulations for TV broadcasters?

The Broadcasting Act regulates the obligations of televisions broadcasters which, as you may expect, are extensive and detailed (suffice it to say apart from typical “advertisement” the Act distinguishes such terms as “sponsorship”, “telesales”, “product placement” and “thematic placement”). However, before you delve further into the subject, just stay here and find out whether you really have to comply with these regulations (after all, if you read all these provisions, you might feel there is no other way for you but to shut down your blog).

First, let me reassure you the Broadcasting Act applies primarily to television broadcasters and they remain the main interest of the National Broadcasting Council. The fact that the provisions of this Act may apply to you as a vlogger raises many complicated doubts. This results from the fact that they have not yet been considered in the doctrine or court judgements.

From a practical point of view, if you run a small-scale business, you shouldn’t fear that you would be considered an entity obliged to follow the regulations applied to television broadcasters (including the obligation to mark advertisements). However, that doesn’t mean you don’t have to comply with them at all. In fact, there are some provisions which apply to a wider range of entities (I will discuss them later in this article).

Does a blogger have to comply with the press law?

Unlike the matter discussed above, the issue of whether an online blog might be considered the press is currently quite well described. It has already been a subject to court decisions, too. Bearing that in mind, we can draw a general conclusion that a blog that is updated regularly (at least once a year) may be considered a magazine (especially when the subsequent posts are numbered and/or dated) subject to mandatory registration.

More about that topic can be found in the following article: Is blog considered the press?. Read more about the registration here: How to register a blog – Press Law

If your blog meets the requirements for the press, you must comply with the press laws concerning advertising. Fortunately, they are not extensive and are relatively easy to follow.

Blogger’s responsibilities – Press Law

The most important obligation under the provisions of the Press Law Act is to mark advertisements in such a way that there is no doubt they are not your usual posts. You can do that by putting the displayed ad in a frame and labelling it “ad/advertising material” or by any other equivalent means. Your readers should see the difference between your regular posts and advertisements at a glance.

Nowadays, bloggers often do more than just display ads “in the background”—they publish promotional posts (e.g. posts that recommend a product or service). In such a case, you should inform your audience about the promotional character of the post (“advertising/promotional post”) at the beginning of the text in a visible manner (forget about fine print).

Additionally, if you have received any benefit for the creation of the post (e.g. money, free products or services, discounts) you should also disclose this fact (e.g by informing that “the post has been developed with the support of X company”).

Marking advertisements and honesty of an online creator

Even if you feel reluctant to disclose the advertising/sponsored nature of the post, being honest with your readers should be your priority. Although many of them might call you a sellout and stop following you, the majority will surely understand that running a professional blog entails many sacrifices which should be at least partially beneficial.

Pseudo-influencers

A phenomenon that is opposite to the one described above is also interesting. Some creators disclose their sponsorship collaboration which in fact… has never existed. This is the domain of so-called pseudo-influencers who publish many materials marked as promotional (e.g. pictures in which they wear clothes of various brands), buy significant numbers of followers and then use it as an argument when they negotiate collaboration terms with real clients.

Product placement vs Polish law

The sponsored posts described in the previous article often overlap the idea of “product placement”. To put it simply, it is a technique to promote a product by making it a part of a seemingly neutral message.

The Broadcasting Act defines “product placement” as “a commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar consideration as well as by gratuitous provision of a product or service”.

This can be often encountered in TV programmes (concerts, shows etc.), in which sponsored products are more or less visible (you surely know the message that appears on the screen: “the programme includes product placement”. The display of this information is a legal obligation.) Although, as mentioned earlier, you do not have to comply with the provisions of the Act, it is worth to remember the above definition of product placement.

As you have probably observed, product placement (in its broad definition) may be encountered in other domains, not only TV broadcasts. You can easily find YouTube videos, Instagram pictures, blog and social media posts that include particular products or services.

Moreover, you can often notice the intention to persuade the audience that such products have been included by accident (e.g. as it was in the case of a famous Robert Lewandowski’s bathroom picture, in which apart from the footballer you could see Head & Shoulders shampoo).

How are these situations considered under Polish law? They could be deemed so-called hidden advertisement, which is an act of unfair competition (according to the definition, it is “statement encouraging the purchase of products or services, creating the impression of a neutral information”).

Due to the “minimal harm” of such information (when compared to e.g. a misleading or illegal advertisement), it is rarely a subject of court proceedings. Additionally, “prosecution” of online creators based on that matter is hindered by their status of entrepreneurs and the requirement to prove the intentional nature of their action.

Details on illegal advertisements can be found here: When is your advertisement legal?.

Although you shouldn’t fear that a suit would be filed against you, you cannot rule out that possibility. For instance, the competition of the manufacturer of a given product could be interested in bringing the action to court to make it more difficult for the manufacturer to enter into collaboration with online creators. Even if you won the case at court, a long legal battle would be the last thing you need. Considering that, it is worth to mark advertisements or product placement accordingly just for the sake of your peace of mind.

How to tag ads?
How to inform about my cooperation with a brand?

In order to organize the information contained in this article, I will present it in the form of practical guidelines, supplemented by the guidelines for influencers developed by the Federal Trade Commission and the British Competition and Markets Authority (currently there are no similar guidelines prepared by the Polish Office of Competition and Consumer Protection).

General tips may be used regardless of whether you a blogger, vlogger, Instagram influencer or Facebook user etc.:

  • if you publish contented sponsored by a brand or you enter into permanent cooperation with that brand, clearly disclose that fact to your audience;
  • sponsorship means any benefit gained through cooperation (e.g. money, free products, discounts etc.);
  • use appropriate tools offered by social media sites to inform your audience about paid promotions (e.g. Facebook sponsored posts);
  • the following steps are INSUFFICIENT when it comes to disclosing a paid promotion:
    • using #ad, #sponsored hashtags: first of all, the hashtags should be in Polish, secondly, they can only supplement the message that informs the audience about the sponsorship (they cannot be the only information concerning that matter), and thirdly, they cannot be hidden among other hashtags or visible only after the post has been fully expanded;
    • informing your audience about the sponsorship in an evasive way, e.g. by saying “thank you, X brand” or tagging a given brand in your post without any additional explanation.

Additional tips for vloggers:

  • if you advertise a particular product or service, inform your audience about that fact on a displayed banner or just tell that to your viewers. It’s important that the viewer has a chance to read that information carefully (e.g. the field should be displayed on the screen for a longer time);
  • avoid being suspected of product placement by removing unnecessary objects from your camera field of view. However, don’t exaggerate (e.g. by blurring a logo on the clothes you are wearing). But remember: better safe than sorry. If your video does include product placement (e.g. a clothing brand has paid you to record a video where you wear its latest T-shirt, a company has given you a box of beverage cans and you’re supposed to drink them in exchange), just tell your viewers about it;
  • a message where you inform your audience about the sponsorship should be a part of the video itself and might be supplemented by the information in its description.

Do you need individual legal help?
Contact me at kontakt@arkadiuszszczudlo.pl

Additional tips for creators publishing their pictures on e.g. Instagram:

  • if you advertise a product or service, inform your audience about that fact in the description of the picture;
  • avoid being suspected of product placement by removing unnecessary objects from your camera field of view. If you benefit from taking a picture with a given object, inform about that in the description of the picture.

Additional tips for bloggers:

  • mark the ads visible on your blog in a visible manner (e.g. by labelling them “advertising”);
  • if the whole blog post is an ad or has been developed in cooperation with a brand, inform the reader about that fact at the beginning and at the end of the post;
  • use brand names or references only when it is necessary and neutral.

Conclusion

My hope is that the article will help you to gain insight into marking ads published in your online work. As you could see, it doesn’t require much effort and is relatively easy, even for someone who just starts their blog, vlog or social media profile. It is always good to maintain transparency in this matter as it proves your professionalism and brings specific benefit—your audience’s trust.

PS The article was developed in cooperation with Snażyk Korol Mordaka sp.k. law firm.

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