If it’s an ad – be transparent
Advertisement is a broad term and it can cover any material that is published with the aim of promoting business activities. Influencers’ posts on social media that are sponsored should be clearly identified as ads. It should be easy for followers or the audience to understand that the post is sponsored. This can be done via the app’s functionality such as “Paid partnership with …” or by explaining the cooperation with a brand at the beginning of the post, for instance by adding some brief text or at least hashtags indicating sponsored content (e.g. “#advertisement“, “#sponsored“, “#cooperation” or Czech equivalents). A mere “#ad” among other hashtags included in the post would not be sufficient.
It is important to understand that cooperation between brands and influencers does not need to be based on money to be subject to these rules. Posts published by influencers in exchange for products or another consideration will qualify as well.
Be aware of specific ads regulations
The brand and the influencer should also remember that certain types of ads are prohibited or limited under Czech law. For instance, ads for illegal goods (e.g. drugs) and ads containing discrimination against race, gender or nationality, are prohibited. And there are statutory rules applicable to ads for specific products such as tobacco products, e-cigarettes, alcohol, medicines, etc.
In relation to children, ads cannot promote behaviour endangering their health, psychological or moral development either. This should be taken into account by the brand especially if the cooperating influencer has a large number of children in his/her follower base.
It’s a business relationship – it’s good to have a proper contract
The brand should keep control of the influencers’ posts that relate to its business. The rules of cooperation should be set out clearly in a commercial contract (not in an employment-type contract), while compliance with the rules on advertisement is one of the key topics that should be covered in such contract.
The contract should also regulate topics such as:
- frequency and timing of posts, for instance preferred days and hours of posting, and specific timing in the case of posts related to particular events;
- guidance on the content and appearance of posts, for instance prohibiting content that could harm the brand’s rights or reputation or that is banned due to specific regulations;
- the use of the IP rights of the brand as well as of third parties, for instance use of music or other copyrighted works in posts;
- (non-)exclusivity of the relationship;
- rules of remuneration and termination, and
- sanctions for breach of contract such as contractual penalties.
- Although there are not yet many cases on enforcement or sanctions imposed in relation to influencer marketing in the Czech Republic, brands will benefit from implementing good practice now, to ensure they are compliant in future. Non-compliance could lead to breach of several laws, including the Advertising Regulation Act, the Consumer Protection Act, unfair competition provisions, the Copyright Act, and others. Depending on the circumstances, liability could be imposed on both the influencer and the brand. The brand should therefore carefully consider, control and enforce its contractual terms with influencers, to protect its business and reputation.
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