Legal topics relating to advertising on social media have become more and more complex. Sometimes it feels as if there are so many approaches and regulations making it difficult to identify what is expected from online marketers.
One of the biggest topics I am currently dealing with is the need to clearly show if you advertise something on social media. For example, if a blogger advertises a certain product on their Instagram page, it is not enough to simply hide the hashtag “#ad” somewhere in your caption, or, even sneaker in a comment below your caption. It has to be clearly visible that the product is being advertised. The European Union is working on stricter rules regarding online advertisement and the German-speaking countries are especially strict.
This means that you will see “Ad”, “Advertisement” or “Anzeige” visible in the caption and in the Instagram stories. For example, if the blogger includes a link to a third party page, the post has to be marked as “ad”, irrespective if the blogger received a fee for that post. This means if I post about a product on my Instagram and link to or tag the company, I have to mark it as advertisement even if it is only a genuine personal recommendation for which I did not receive any fees. Even when I take a picture of a pair of shoes, for example, and you can see the brand, I need to say “advertisement because of brand recognition” (“Anzeige wegen Markenerkennung”).
The argument of the legislators is that the average Instagram user may be misled if a post is not explicitly declared as advertising. Obviously, it has become too difficult for an average person to differentiate between what is advertising and what is not. I have three issues with this point of view:
Firstly, just because I like something and post about it, why do I have to mark it as advertisement? If I go to the gym with sneakers with a visible logo, I am also not carrying a sign around my neck saying “advertising because you can see the logo”.
Secondly, why is this approach only applied to bloggers? If you open the major magazines, they never have to add a disclaimer to every article or picture. As a reader of Vogue, I need to be aware that most probably, the magazine receives a fee for every product they advertise in their outlets. When a journalist for Condé Nast Traveller reviews a hotel, why do they not have to say if it was a sponsored or a comped (ie. free) trip? Would their review be different if they paid for the stay themselves? If users have to be protected, then the same standards should be applied to traditional media as well.
My third and most important argument is about the responsibility of the consumers. Should we as consumers, users, readers not be able to use our common sense? Is it really misleading? I follow a lot of big bloggers and there is not a single day where they do not advertise a product. But I know that this is their business model. I know it is the same as when Vogue reports about the latest trends at fashion week. This is how they make money.
Of course, media platforms and companies have to contribute to transparency. Nevertheless, it is also the duty of the consumer to be informed and question what they see online. If we treat the average person on the street as stupid and unable to make informed decisions without being told explicitly, imagine where this leads to. The key is to educate: Children need to learn that their favourite Youtuber probably recommends a toy because they were paid for it. And adults just need to apply our common sense. How many products can an Instagrammer genuinely recommend without being paid?
I am just writing this post in one of my favourite cafés. When I get my coffee, they ask me if I want a cookie or croissant with it. Does the barista have to tell me: “Wait, but I have to inform you, this is advertisement/sales promotion for our pastries.”?
Having a functioning regulative system is one thing. But as consumers we cannot dump all the responsibility on regulators to protect us. If we want the freedom of consuming all the media, we have to inform and protect ourselves.