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Here is the most important information, questions, and answers for correctly labeling promotional posts on Instagram, Facebook, and other social media platforms.
Contents:
Note: This is intended as assistance but does not constitute legal advice. We accept no liability.
1/ How is Insta advertising correctly labeled?
If possible: Branded content function
The "branded content" functions make it relatively easy to ensure that everything runs smoothly.
The various platforms offer different tools for this purpose, but these are not always available to everyone. Here is the official information from the respective providers:
Instagram: Tools for branded content / How branded content works
Facebook: Instructions for branded content / Information about branded content / Request branded content
If branded content is not available: Label advertising correctly
If "branded content" is not available to you, the advertising must be labeled in another way.
This should not be done secretly or in a foreign language... Lucerne University of Applied Sciences and Arts (HSLU) writes:
Commercial content should be labeled with #ad or #advertisement at the beginning and not at the end or hidden. Unlike #ad, #sponsoredby, or #poweredby, these two labels are considered safe.
The HSLU writes the following about videos:
Within a video, products must be identified by displaying "supported by (product XY)" at the beginning or "advertisement" as soon as the product appears.
2/ Examples of good labeling of influencer advertising
3/ Is a hashtag #ad or #advertisement at the end of the Instagram text sufficient?
The use of English terms in Switzerland is not recommended unless the account is otherwise maintained in English.
In German-speaking Switzerland, hashtags such as #Werbung, #Anzeige, or #BezahltePartnerschaft should be used .
Above all, however, the labeling must not only appear at the end of the text, but must be clearly visible from the outset (i.e., without clicking on "Continue reading").
Regarding English hashtags such as "#ad," Urheberrecht.de writes:
The courts currently disagree on whether this is sufficient, as many users do not understand the meaning of the term. Therefore, hashtags such as "#advertisement" or "#ad" are recommended.
4/ When do I have to label something as advertising?
It is clear that if commercial interests are pursued with the contribution (i.e., a contribution in return for something), it must be labeled as advertising.
So if you make a post for which you receive something in return (money or other compensation), you should label this post as advertising.
There is currently even a discussion or question as to whether a post must be marked as advertising if a brand is mentioned in the text or visible in the image—even if NO consideration (e.g., money) has been received for this. More on this in the next question 👇
5/ Do posts for which you have not received any money also have to be labeled as advertising?
The answer here is more difficult, as there is some room for legal interpretation.
Some say that even unpaid posts must be declared as advertising. However, as no decision has yet been made on this issue in Switzerland, it is not possible to give a definitive answer.
In other cases, it is interpreted to mean that a declaration is only necessary if, for example, a certain number of followers are present, or the companies are tagged in the post, etc. Cosmopolitan.de writes in the article "Do I have to label all Instagram posts as advertising from now on?"
"Individuals with a large number of followers (e.g., 50,000) who also link to a company's page must label their posts as advertising, even if they received the featured product from a company free of charge and without any specifications."
Update January 2021: Germany wants to clarify the situation. Under the slogan "Legal certainty for influencers and bloggers," Christine Lambrecht (Federal Minister of Justice and Consumer Protection) explains: "In future, posts will only have to be labeled as advertising if there is something in return. Consideration includes, for example, commissions, products sent by a third-party company that the influencer is allowed to use or keep, as well as press trips, provision of equipment, or reimbursement of expenses."
Update May 2022: On May 20, 2022, the Federal Court of Justice enacted the so-called "Influencer Law. " It is intended to ensure greater transparency in labeling in the social media sector.
The new "law" has not been able to clarify all ambiguities, but it does remove some question marks. One major change is that influencers are now automatically assumed to receive compensation as soon as they advertise a product. This directly leads to a labeling requirement.
6/ Do I have to tag old posts retrospectively?
Actually, you should have labeled all posts correctly, including past posts.
7/ Why should social media advertising be labeled?
7.1 Ethical and moral reasons
Followers should know when a statement has been made in exchange for something in return. This allows them to better assess how to interpret the post.
7.2 Credibility and your reputation
If promotional posts are not recognizable as such, followers may interpret this as manipulation, which can negatively impact the credibility of your account.
7.3 Swiss law
Switzerland also has a law against unfair competition (UWG), which states that it is unfair and unlawful to engage in deceptive behavior that influences the relationship between competitors or between suppliers and customers.
With specific reference to influencer marketing, lawyer Martin Steiger explains in the Handelszeitung newspaper:
"Influencers must not deceive their audience," and surreptitious advertising is prohibited, even if no payment is made for it.
Even though civil action is required in Switzerland to punish these offenses, which is rather complicated, and the Swiss Commission for Fairness as an institution has little power to impose sanctions, surreptitious advertising is fundamentally illegal.
7.4 Laws abroad
Theoretically, a Swiss influencer who has followers in Germany, for example, can also be prosecuted.
Influencers in Germany have already received a number of warnings. See, for example: Wave of warnings against influencers and bloggers or Unauthorized continuous advertising – €10,000 fine for Hamburg YouTuber.
7.5 Algorithms used by Instagram, Facebook, and others
It may well be that posts that do not correctly declare advertising will no longer be displayed in the feed in the future, or will be displayed less prominently (see What can the Branded Content Tag do?). Facebook/Instagram requires (translated from English):
“Comply with all applicable laws and regulations, including ensuring that you provide all necessary information to individuals who use Facebook or Instagram, such as any information necessary to identify the commercial nature of the content you publish.”
Branded Content Policies from Instagram and Facebook (in English)
7.6 Any other reasons?
Write your opinion in the comments at the end of the post.