Walking the line: How brands and influencers can both succeed online

Influencer marketing has become big business in our social media-driven world, but how should brand owners best navigate this digital phenomenon? Ariane De Croo explores the thin line between private and professional content creation to offer some advice. 

Not only have social media sites, such as Instagram, Facebook, TikTok and YouTube, become closely intertwined with our personal lives, but they also have a vital role to play in the commercial world, hence the increasing use of ‘social media influencers’. 

Why brands and influencers work together 

Social media influencers are content creators who make a living from advertising or praising products and/or services on one or more media channels (social media, blogs, vlogs, podcasts or other platforms). As these influencers have vast numbers of followers, their posts can have an enormous impact, making influencer marketing an important part of the marketing strategy for many companies today. 

In the digital world, the consumer is increasingly influenced by what is being shared and recommended online. As influencers can sway the opinions and behaviour of their followers, they often collaborate with brands for sponsored content, promotions and even partnerships, using their influence to promote products and/or services to their audience. 

For example, which holiday destination is worth a visit? Where do you eat the best steak? What colour nail polish is hot (or not)? Which brand provides the best quality? 

Do influencers have to comply with advertising legislation? 

When products and/or services are promoted in photos, videos or messages on social media or other platforms, influencers must comply with the provisions on advertising. For example: 

• In Belgium, the Code of Economic Law stipulates that advertising should always be recognisable as advertising. As such, a commercial message must be transparent and clearly communicated to the consumer. The Flemish Regulator for Media Content Creators provides a guideline (Veelgestelde vragen | Vlaamse Regulator voor de Media) which discusses labelling videos with commercial communications. 
• In the Netherlands, an advertiser must always meet the rules in the Dutch Advertising Code (General Archieven - Stichting Reclame Code). This applies to all advertising; it makes no difference which medium is used. However, next to these general rules, the Code also contains rules specifically for advertising through social media (Advertising Code for Social Media & Influencer Marketing). 
• In the UK, influencer marketing falls under the CAP Code (UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing) if it qualifies as advertorial content, more precisely if the influencer has received a benefit from the brand owner (monetary advantage or by way of free products) and the brand owner has some form of editorial control over the influencer’s content. 
• The European Commission clarifies the distinct roles of influencers – advertisers and sellers – compared to consumer protection legislation in the EU (Influencer Legal Hub). 

Despite these regulations, it is not always obvious to the average follower if a content creator is receiving a benefit in exchange for a post. Given that commercial messages can appear among regular messages from a content creator, the boundaries are blurred. This can cause problems for both brands and influencers. 

What is a professional content creator required to do? 

An influencer is deemed to be ‘advertising’ when they promote a product, a company, a service or a brand (orally, visually or in a text), and receive a benefit from the company behind that brand, product or service. 

When brands and influencers work together, transparency is key. Content creators must make it clear that their message is advertising. In other words, the commercial character of the content must stand out clearly to the follower, compared to the context.  

This is possible by using a tag (such as advertisement, publicity, advertising) or a label (such as the “Paid Partnership” label on Instagram or the “Contains Paid Promotion” on YouTube). We also advise clearly tagging the company behind the promoted product and/or service promoted. 

What about their use of intellectual property? 

As important as influencer marketing can be for a brand owner, it does not detract from the fact that the way in which an influencer represents or otherwise uses the brand’s IP – such as trademarks, logos and slogans – should be carefully monitored on social media sites. This applies to both authorised and unauthorised use. 

Where influencers are authorised to use brand assets, brand owners need to ensure that such use complies with and upholds their IP rights as registered. For example, bearing in mind specific wording, spelling or any commercial agreements that may apply. 

Where influencers are not authorised to use brand assets, then social media monitoring is as, if not more, vital. For instance, to help you identify threats to your IP rights or commercial success, from ‘dupe posts’, a practice that has emerged on social media of flagging content with signifiers such as #dupe to indicate links to counterfeit or pirate content. 

To find out more about Online Brand Protection for social media sites or for specific support for brands and influencers on navigating the rules of influencer marketing, please speak to your Novagraaf attorney or contact us below. 

Ariane De Croo is a Trademark and Design Attorney at Novagraaf in Belgium.