Poland: Cooperation with influencers

New regulations on the way?

In brief

For a long time in Poland, governmental bodies did not comment on the legal framework applicable to cooperation with influencers, such as the proper tagging of posts or the liability for sponsored content. Unlike countries such as Germany, France, the UK or US, there was no official guidance on this issue in Poland, resulting either from case law, established guidelines or the activity of the relevant authorities. The principles of cooperation could only be assessed on the basis of general interpretations of the existing legal regulations. However, in recent weeks the Polish Office for Competition and Consumer Protection (UOKIK) has taken steps to organize the sponsored online content market, as it found that much of the commercial content on influencer profiles on social media is either not marked as advertising at all or is insufficiently marked. This constitutes surreptitious (hidden) advertising, which is prohibited under Polish law.

Stage one - Explanatory proceedings

At the end of September 2021, UOKIK launched the first round of explanatory proceedings to examine the relationships between influencers with advertising agencies and advertisers, as well as verifying the transparency of the influencers' messages.

Targeted entities? The biggest Polish influencers in terms of reach on social media and advertising agencies involved in the promotion of products through social media. While the proceedings are currently being conducted "in a case" (i.e., not against specific entities), UOKIK plans to contact further groups of influencers and agencies soon.

As confirmed by the President of UOKIK, the investigated entities are requested to provide agreements, which UOKIK examines closely (especially in terms of provisions governing advertising cooperation with influencers). In certain matters, UOKIK also asks for relevant T&Cs, correspondence or additional explanations.

Stage two - Continuation of the proceedings and unofficial guidelines

At the time of announcing the start of explanatory proceedings, no specific comments had yet been made regarding the rules of content labeling. These appeared in an interview given by the President of UOKIK at the end of October 2021, during which he formulated non-official guidelines in this respect. In his opinion, the correct designations will be the hashtags #reklama (ENG: "advertisement") or #materiałysponsorowane (ENG: "sponsored content") as they are clear, unequivocal and understandable for the audience. The currently commonly used hashtags #ad or #współpraca (ENG: "collaboration") are considered insufficient.

In the process of the verification of agreements with influencers, UOKIK controls whether brands or advertisers request the labelling of sponsored content (or ask influencers not to give information about sponsoring). It also verifies the rules of liability for proper content labelling and the extent to which the advertising agencies influence the published content.

In the interview, the president of UOKIK also indicated that the investigation period is a time for the influencer marketing community to comply with the standards and laws that apply to every other content provider.

What to expect?

UOKIK makes no secret that it wants to regulate the market of sponsored content on social media, so that Internet users get a clear message about what is an advertisement and what is an independent product review.

After the explanatory proceedings are completed, UOKIK will consider publishing very precise guidelines for entities promoting products on social media, so that their message will not be considered as surreptitious (hidden) advertising. UOKIK also indicated that it is keen on self-regulation of the industry rather than imposing financial penalties on entities that violate the collective interests of consumers by misleading them.

UOKIK does not rule out making appropriate changes to the law if loopholes are identified. The already binding regulations and content labelling standards for media such as TV are an important reference point for UOKIK.

The industry's reaction to the steps taken by the authorities so far is already visible - the hashtags #reklama or #materiałysponsorowane have been appearing next to the posts of leading influencers. We should certainly expect more detailed guidelines in the near future, especially since at this stage they are very general - it has not yet been clearly defined who is considered to be an influencer (in Poland, there is no such legal definition) and how the content should be marked in terms of its type (e.g., videos, images, posts) or the platforms on which the content is posted.

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