Here you’ll find key historical information, questions, and answers regarding the labeling of sponsored content on Instagram, Facebook, and other social media platforms.
Note: This post documents the current status of the published guidance and does not constitute legal advice. We assume no liability. For current campaigns, always check the legal and platform-specific requirements in effect today.
1/ How should Instagram ads be properly labeled?
If possible: Branded content feature
The branded content features provide a relatively good way to ensure that the commercial partnership is clearly identifiable.
The various platforms offer different tools for this purpose, though they aren’t always available to everyone. Here is the official information from the respective providers:
- Instagram: Tools for Branded Content / How Branded Content Works
- Facebook: Branded Content Guide / Branded Content Information / Request Branded Content
- YouTube: Partnerships with Brands
If branded content is not available: Label advertisements correctly
If branded content is not available to you, the advertisement must be labeled in some other way.
This should not be kept hidden, nor should it be done in a foreign language. The Lucerne University of Applied Sciences and Arts (HSLU) wrote the following on this topic:
Commercial content should be labeled with #ad or #advertisement at the beginning, rather than at the end or in a hidden location. Unlike #ad, #sponsoredby, or #poweredby, these two labels are considered reliable.
Regarding videos, the HSLU wrote:
Within a video, products must be identified by displaying “supported by (Product XY)” at the beginning or by displaying “Advertisement” as soon as the product appears.
2/ Examples of Proper Disclosure of Influencer Advertising
3/ Is a hashtag like #ad or #advertisement at the end of an Instagram caption enough?
In Switzerland, it is not recommended to use English terms unless the account is otherwise maintained in English.
In German-speaking Switzerland, hashtags such as #Advertisement, #Ad, or #PaidPartnership should be used.
Above all, the disclosure must not appear only at the end of the text; rather, it must be clearly visible from the very beginning—that is, without having to click “Read More.”
Regarding English hashtags such as #ad, Urheberrecht.de wrote:
There is currently no consensus in case law as to whether this is sufficient, since many users do not understand the meaning of the term. Therefore, it is generally recommended to use hashtags such as “#Ad” or “#Advertisement.”
4/ When do I have to label something as an advertisement?
It is clear that an advertising disclosure must be made if the post serves commercial interests—that is, if the post is published in exchange for compensation.
If you publish a post for which you receive compensation—whether money or some other form of benefit—you should label that post as an advertisement.
There was also discussion about whether a post must be labeled as advertising even if a brand is mentioned in the text or visible in an image, even though no consideration was provided. More on this in the next question.
5/ Do posts for which you did not receive any payment also have to be labeled as advertisements?
Here, the answer becomes more difficult, as there is room for legal interpretation.
Some say that even unpaid posts must be labeled as advertising. Since no ruling had been issued in Switzerland on this matter at that time, this question could not be definitively answered.
In other cases, it has been interpreted to mean that a disclosure is only necessary if, for example, there is a certain number of followers or companies are tagged in the post. Cosmopolitan wrote the following on this topic:
People with a large number of followers (e.g., 50,000) who also include links to a company’s page must label their posts as advertisements, even if they received the featured product from a company for free and without any requirements.
Update January 2021: Germany sought to clarify the situation regarding this issue. Under the slogan “Legal Certainty for #Influencers and Bloggers,” then-Federal Minister of Justice Christine Lambrecht explained that, going forward, posts would only need to be labeled as advertising if there was some form of compensation. She cited commissions, products sent to influencers, press trips, equipment, or coverage of expenses as examples of such compensation.
Update May 2022: In Germany, the so-called “Influencer Law” went into effect on May 20, 2022. It was intended to ensure greater transparency regarding disclosure requirements on social media. Not all ambiguities have been resolved. One significant change was the presumption of compensation whenever an influencer promotes a product, which can directly result in a disclosure requirement.
6/ Do I need to retroactively tag old posts?
Actually, all posts should be properly tagged. This also applies to past posts.
7/ Why should social media ads be labeled?
7.1 Ethical and Moral Reasons
Followers should know when a statement was made in exchange for something. This allows them to better assess how the post should be interpreted.
7.2 Credibility and Reputation
If sponsored posts aren’t clearly identifiable as such, followers may interpret this as manipulation, which can damage an account’s credibility.
7.3 Swiss Law
The Law Against Unfair Competition (UWG) also applies in Switzerland. It deems deceptive conduct to be unfair and unlawful if it influences the relationship between competitors or between suppliers and customers.
Speaking about influencer marketing, attorney Martin Steiger explained in the *Handelszeitung*:
Influencers must not mislead their audience.
Even though a civil lawsuit is required in Switzerland to punish such offenses, and the Swiss Fair Trading Commission has very few options for imposing sanctions, surreptitious advertising is, in principle, illegal.
7.4 Law Abroad
In theory, a Swiss influencer who has followers in Germany, for example, could also be prosecuted there.
Influencers in Germany have already received cease-and-desist letters. Examples: Waves of cease-and-desist letters against influencers and bloggers; or Unauthorized continuous advertising—a 10,000-euro fine for a Hamburg-based YouTuber.
7.5 The Algorithm Used by Instagram, Facebook, and Others
Posts that do not properly label advertisements may no longer appear in the feed, or may appear less frequently. Facebook and Instagram essentially require the following in their branded content guidelines:
Comply with all applicable laws and regulations, including ensuring that you provide people who use Facebook or Instagram with all necessary information to recognize the commercial nature of the content you post.
7.6 Any other reasons?
Transparency builds trust. Clearly labeling partnerships helps the audience distinguish between editorial content and commercial content.
