The DCO’s first guidelines on influencers was released in January 2016. Since then, to better reflect the Unfair Marketing Practices Directive, a new Danish Marketing Practices Act (MPA) has come into force, representing an update of the guidelines.
When is a communication considered ‘marketing’?
Previously, an influencer’s communications concerning a business’ products and services were not considered marketing unless there was an underlying agreement between the influencer and the business.
According to the new guidelines, only a “commercial intent” is necessary. This means that where the business’ behaviour towards the influencer has a commercial intent, the influencer’s public communications regarding the business’ products and services are considered to be marketing, requiring the communications to be clearly identified as such.
If, however, the influencer mentions a business’ products on his or her own initiative without receiving anything in return from the business, the communication is not considered to be marketing.
How to properly identify marketing?
If a communication is considered to be marketing, it must be properly identified as such.
According to the updated guidelines, this can be done by the influencer clearly stating either “commercial” or “advertisement” at the start of the post describing the business’ products or services. The previous version of the guidelines also stated that “sponsored content” would sufficiently identify the post as marketing, but this is not the case anymore.
Even though the influencer theoretically is free to use whatever phrase he or she wishes to identify the post as marketing, the above-mentioned two accepted “disclaimer- phrases” are practically the only phrases that are sufficiently clear and short to be both legal and practical.
In case of videos – e.g. Snapchat Stories – it’s essential that the disclaimer-phrase is easily visible and in the first video if part of a continuous series.
If the influencer’s reward for marketing a business’ products or services is the product itself and nothing more, it’s sufficient to state “I have received the product as a gift” or “I have received the product for free” in order to comply with the MPA. These disclaimers can – as long as the influencer only receives the product and nothing more – be used instead of “commercial” or “advertisement”.
Marketing to minors
The guidelines give further clarification regarding marketing to minors.
If an influencer targets minors, amongst others, when marketing products through their channels, the disclaimer-phrases must be very clearly stated in connection with the post, e.g. by putting the disclaimer-phrase in capital letters, as such “COMMERCIAL” or “ADVERTISEMENT”.
Generally, it’s against good marketing practice for a business to send products to an influencer under 18, although this can be acceptable depending on certain circumstances, for example the influencer’s age, the influencer’s audience, or if the business has established contact through the influencer’s parents beforehand.
If a post is not correctly identified as marketing in accordance with the above, itis considered covert advertising and will likely be subject to a fine under the MPA.
Businesses marketing their products and services through the influencer are responsible for instructing the influencer on how to identify his or her posts as marketing. Failing to do so is a violation of the MPA. Equally, if the influencer is not following instruction, the business is responsible for either making sure the influencer corrects the posts or removes them. If the influencer fails to follow instructions on multiple occasions, the business may be obliged to terminate the arrangement.
Influencers themselves can also become liable depending on the circumstances of the case, for example if the arrangement between the business and the influencer is primarily established at the influencer’s own request.
Bureaus and agencies advising influencers and establishing contact between businesses and influencers can also become liable, e.g. if an agency is hired by a business to find influencers to promote their products. In this case, the agency becomes liable on the same terms as the business.
The guidelines can be found here (in Danish).