What if employees express themselves positively about your products on social media?

In the begin­ning of 2019 jour­nal­ists from the busi­ness mag­a­zine Resumé that mon­i­tors media and mar­ket com­mu­ni­ca­tion, want­ed the Swedish Advertising Ombudsman (Reklamombudsmannen; RO) to look into what con­sti­tutes hid­den adver­tis­ing in social media. They report­ed 16 posts from 14 influencers.

Posts on private Instagram accounts

The RON found sev­er­al posts guilty of hid­den adver­tis­ing. One of the most promi­nent cas­es con­cerns Nocco, a man­u­fac­tur­er of sug­ar-free func­tion­al beverages.

In November of 2018 Nocco’s brand man­ag­er Linus Carlén made a post on his pri­vate Instagram account. In the post he express­es a per­son­al and pos­i­tive view of the com­pa­ny’s bev­er­ages. He also stat­ed how much they cost: two for 35 SEK. But to see the full post the read­er had to click on “more”. The post then got a com­mer­cial char­ac­ter where the brand man­ag­er sug­gest­ed a store and encour­aged the read­er to buy. A clear state­ment that it is pro­mo­tion­al was miss­ing, said the RON, and their deci­sion was; in breach of the rules.

Linus Carlén’s post on Instagram: “Like BOOM when you find this X-mas clas­sic in the stores again. 2 for 35 at @kvantumliljeholmen and it went right into my self-scan bag. Also avail­able via link in my bio if you want to secure a whole box #noc­co #theresonlyonemarshmallowsantaintheworld”.[/caption]

Transparency for advertisers and influencers is scant

Behind the sur­vey of the posts and reports to the RO are the jour­nal­ists Yasmine Winberg and Julia Lundin of the busi­ness jour­nal Resumé. Over the years they have noticed that both adver­tis­ers and influ­encers are often uncer­tain what actu­al­ly applies.

– We decid­ed to look into this as there is, in our opin­ion, no clear and set prac­tice. Despite the fact that influ­encers have been active for more than ten years, there is only one con­vic­tion of an influ­encer in the Patent and Market Court. At the same time influ­encers become more and more impor­tant for mar­ket­ing, says Julia Lundin.

A large part of advertising

Surveys done by the Institute for Advertising and Media Statistics (IRM) show that more and more funds are spent on influ­encer mar­ket­ing in Sweden. During 2017 the mar­ket had a turnover of 660 MSEK, which is an increase of 33% from the pre­vi­ous year.

– The influ­encer mar­ket­ing busi­ness is esti­mat­ed to soon reach a bil­lion SEK’s worth of the total adver­tis­ing cost in Sweden, says Julia Lundin.

Employees can find themselves in hot water

The mar­ket­ing law is clear. It applies to all mar­ket­ing, no mat­ter the media. If the pur­pose of a post is com­mer­cial, the post shall be marked as such. This also applies to those employed by the company.

But the ques­tion is if the mar­ket­ing law has kept up with the increas­ing num­ber of influ­encers and hired brand ambas­sadors. And if com­pa­nies and influ­encers are aware that any mar­ket­ing needs to be iden­ti­fied as such.

– When we have tried to clar­i­fy, in pre­vi­ous arti­cles, when you need to iden­ti­fy adver­tis­ing and when you don’t, both influ­encers and lawyers have not been entire­ly cer­tain. Nobody knows for sure. And as the RO is a self-reg­u­la­to­ry organ there are no sanc­tions against influ­encers, mean­ing that this wild west approach can sim­ply just go on, says Julia Lundin.

More brand ambassadeurs could be rebuked

Resumé’s review has awak­ened the debate on what con­sti­tutes your own opin­ion and what con­sti­tutes adver­tis­ing. Particularly the mat­ter of what employ­ees can say in social media with­out it con­sti­tut­ing advertising.

What is most notable is the RON’s deci­sion against Nocco’s brand man­ag­er Linus Carlén.

– He mar­kets prod­ucts from the com­pa­ny where he is an employ­ee. This sets the stan­dard that oth­er brand ambas­sadors may be tried and con­vict­ed. Many com­pa­nies and con­sul­tants have con­tact­ed us because they are uncer­tain of how to act, says Julia Lundin.

Subjective and tricky

After the deci­sions by the RON Yasmine Winberg and Julia Lundin have also looked at how the agree­ments between adver­tis­ers and influ­encers hired by com­pa­nies have been inter­pret­ed by the RON.

– How come an influ­encer who has signed on for three pic­tures but posts two extra for free, can be acquit­ted? While Linus Carlén, who every day is paid for his role at the com­pa­ny and has clear­ly stat­ed that his salary is not at all depen­dent on his activ­i­ty on Instagram, is con­vict­ed. It gets con­fus­ing, says Julia Lundin.

Julia Lundin tells us that Linus Carlén was acquit­ted in anoth­er case. The RON con­sid­ered that this par­tic­u­lar post was, to the aver­age con­sumer, clear advertising.

– This risks becom­ing sub­jec­tive, and tricky for the influ­encer to under­stand, she states.

Tougher restrictions abroad

The jour­nal­ist duo at Resumé are hop­ing that the review­ing of posts in social media will have raised aware­ness with influ­encers, influ­encer net­works, com­pa­nies and employ­ees, and that they will all rather be safe than sor­ry when it comes to mark­ing as advertising.

– But the grey zone is still sub­stan­tial and before a prac­tice is set in a legal court the uncer­tain­ty in the field is con­sid­er­able. We def­i­nite­ly see tougher restric­tions as regards the mark­ing of adver­tis­ing abroad while Sweden is still mark­ing time. This is why it’s appro­pri­ate to take the lead from oth­er coun­tries, says Julia Lundin.

Are we in a grey zone?

Are we in a grey zone? We ask Mats Rönne, inde­pen­dent con­sul­tant and for­mer chair­man of the asso­ci­a­tion for Swedish Advertisers and a mem­ber of the RON.

– Both yes and no, I’d say. There are some things that need to be marked as adver­tis­ing, and that’s when there is a com­mer­cial pur­pose and they refer to clear com­mer­cial mat­ters. But some things are just free speech. In that case we have the right to any kind of opin­ion. The grey zone is where these two worlds meet, says Mats Rönne.

Transparency is the answer

The ques­tion is if you, as an employ­ee, need to wor­ry about pro­mot­ing your com­pa­ny. Mats Rönne means that it is an advan­tage to all those who work for a com­pa­ny to always be trans­par­ent in their communication.

– Suppose you are an employ­ee of a com­pa­ny. The few­er hid­den agen­das you have, the more trans­par­ent you are in your com­mu­ni­ca­tion, he says.

Mats Rönne men­tions as an exam­ple that the RON dur­ing sev­er­al years has had recur­ring cas­es regard­ing so called natives. Natives are adver­tis­ing arti­cles that look and act like the host medi­um. These are reg­u­lar­ly found in breach of the ICC reg­u­la­tions by the RON as many lack a clear adver­tis­ing mark­ing, or it has been too vague.

– So it is always bet­ter to be trans­par­ent if you want to appear cred­i­ble. Transparency and cred­i­bil­i­ty goes hand in hand. When you mar­ket a prod­uct you need to be clear regard­ing the pur­pose. Exactly how you present your argu­ments and induce pur­chase is more free, he says.

The company is behind the ad

Mats Rönne stress­es that it’s impor­tant to remem­ber that the adver­tis­er has a big respon­si­bil­i­ty for the mar­ket­ing and how it is shaped and expressed. After all, it is the adver­tis­er who is the orig­i­na­tor of the marketing.

– As a pur­chas­er of adver­tis­ing it is there­fore impor­tant to have it all set down in a coop­er­a­tion agree­ment. In oth­er words, what am I expect­ing, what are my inten­tions? I need to know what I am pay­ing for and that both par­ties will stay with­in the bound­aries. The legal bound­aries is some­thing you, as an adver­tis­er, need to find out. But in prin­ci­pal, any­thing that hap­pens in your own mar­ket­ing chan­nels is risk free as long as the sender is vis­i­ble. Advertising in social media or oth­er, paid for, media, is stricter, says Mats Rönne.

What can com­pa­nies or influ­encers learn from the decisions?

– The impor­tant thing to remem­ber is that respon­si­bil­i­ty lies with all par­ties. If it is a com­mer­cial coop­er­a­tion – which it most often is – it is adver­tis­ing and should be marked as such. It is always bet­ter to be safe rather than sor­ry, says Mats Rönne.

On the safe side

So, what hap­pens if your co-work­ers speaks out pos­i­tive­ly in social media about your products?

Nothing, as long as they stay with­in the guide­lines of the mar­ket­ing law. According to the RON there is no gen­er­al reg­u­la­tion that stip­u­lates that adver­tis­ing must be marked as such – as long as it is clear that the con­tent is of a com­mer­cial nature. The impor­tant thing is that a con­sumer or a fol­low­er of the social media is not mis­guid­ed. If a post is com­mer­cial but could be con­fused with edi­to­r­i­al mate­r­i­al or sim­i­lar – mark it clear­ly as adver­tis­ing in the begin­ning of the post. Then you are on the safe side.

We have unsuc­cess­ful­ly tried to reach Linus Carlén, brand man­ag­er at Nocco, for a comment.