On 8 October 2018, the Belgian Advertising Council (Raad voor de Reclame/Conseil de la Publicité) published Recommendations for Online Influencers (Aanbevelingen van de Raad voor de Reclame inzake online influencers/Recommandations du Conseil de la Publicité en matière d'influenceurs en ligne – the "Recommendations"). The Recommendations should enhance consumer protection by ensuring that consumers always know whether a post on social media constitutes an opinion or a form of publicity. They also increase legal certainty for both influencers and advertisers.
However, the Recommendations only apply when two conditions are satisfied. First, the online influencer must receive compensation and, second, the advertiser must have significant control over the communication. If, for example, an online influencer receives a product for free and is not bound by contract to give it a positive review, then the communication does not constitute social media marketing.
The Recommendations lay out two ground rules.
First, any commercial communication should be clearly identifiable as such. Hence, online influencers should clarify their relationship with the brand, by using disclaimers such as "advertising", "sponsoring", "promotion", "sponsored by" or "in collaboration with". Alternatively, they may use such hashtags as: "#spon", "#pub", "#prom", "#ad" or "#sample". In addition, online influencers should adapt the language of the disclaimer to their followers. Finally, those words should not be hidden to the average consumer who should be able to see them upon a normal consultation of the communication (e.g., no need to click on "Read more").
Second, any commercial communication should be loyal. In other words, the online communication must not contain incorrect or misleading information, nor should it incentivise children to convince their parents or other adults to buy products for them.
Online influencers are liable for any violation of the Recommendations. In addition, any company or advertiser which has placed products or services online through the influencer may be held liable for the violation of the Recommendations. The Jury of Ethical Advertising (Jury voor Ethische Praktijken inzake Reclame/Jury d'Ethique Publicitaire) is competent to handle complaints related to social influence marketing and make determinations in accordance with the rules available on www.jep.be. Should the Jury of Ethical Advertsing decide to modify or end a marketing campaign, advertising agencies, their clients and the social media are expected to comply with its decisions voluntarily.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.