NEW FORMS OF ADVERTISING ONLINE – CAN INFLUENCERS BE LEGALLY REGULATED?

While scrolling through Instagram content, you’ve come across a photo of your favorite actress using a new moisturizing cream from a well-known brand.

Would you characterize such content as an advertisement for the cream?

Commercial messages and advertising have become an integral part of social networks and other online platforms where users spend hours every day. Consequently, a large amount of online content of undeniably commercial nature is created, but it’s difficult, sometimes even impossible, for users to assess the commercial nature of the content, i.e., that a post from a famous YouTuber is actually an advertisement for a specific product or service.

New forms of advertising, such as affiliate marketing and advertorials, “blur” the boundaries of traditional advertising concepts, especially in a legal sense. Users who have a significant community of followers on social networks and popular content have become “influencers,” whose potential for spreading commercial messages has been recognized by advertisers.

Thus, we can see various types of prize draws, lotteries (giveaways), tutorials, product unboxings, product placement within user content, and the like. As consumers, i.e., social network users, often cannot recognize the offering of products and services and the incentives to purchase them in content on internet platforms, such arrangements must be clearly labeled and transparent for users. For example, Instagram has introduced the option of marking “paid partnership,” which can clearly label posts created as part of a partnership between content creators and advertisers.

Online advertising is legally equated with other forms of traditional offline advertising, and in Article 45 of the Advertising Law, it is defined as advertising on a website, social network, application, or through another form of internet communication, when the content of the advertising message undoubtedly implies that it is directed at recipients of the advertising message from the Republic of Serbia and that the goods or services advertised can be purchased or delivered in the territory of the Republic of Serbia.

However, the question that can be asked is to what extent the law can be applied to new forms of online advertising at all?

The Advertising Law is not inapplicable, but it is extremely difficult to control such a large amount of advertising content on a daily basis, as well as all the new forms of online expression that arise. Considering that there is room to regard internet influencers as advertisers in a legal sense, it is necessary to react to their potential unlawful actions related to the online advertising they conduct and educate them in this field.

Although commercial speech enjoys protection within the freedom of expression, it is necessary to achieve a balance with other values, in this particular case, the protection of consumers and internet users.

Accordingly, it should be considered to prescribe prohibited forms of advertising on the internet, which will include new forms of advertising (via affiliate marketing, advertorials, and similar) to encourage lawful behavior, since consumers ultimately pay the price for any unlawful behavior during advertising. Special attention should be paid to covert advertising and product placement in children’s content, and advertisers in such cases should be punished more severely. Source: SHARE Foundation

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