First decisions on influencer advertising in Switzerland
Influencer marketing has recently gained popularity. In contrast to other countries - such as Germany - there have not yet been any decisions on influencer advertising in Switzerland. The question of when a post is considered surreptitious advertising and thus violates competition law has not yet been clarified in Switzerland.
The Foundation for Consumer Protection had now filed complaints with the Fairness Commission against several (prominent) influencers in order to create legal clarity in Switzerland as well.
First, a short explanation for all those who have no idea what this term means: In influencer marketing, companies use opinion leaders (influencers) to increase awareness of their brand or products. The influencers present and use a corresponding product or service and promote it via their social media channels, for which they either receive free products from the company, invitations to events or are paid directly. This is classic word-of-mouth propaganda, except that influencers can reach a large number of people/consumers via their channels such as Instagram, Twitter, YouTube, Facebook, etc. The followers are sometimes the same as the influencer. The followers are sometimes very loyal to the influencer and therefore particularly receptive to recommendations. Today, influencers are mainly active in the areas of fashion & cosmetics, fitness & lifestyle, nutrition and travel.
According to SRF's research, the Lauterkeitskommission has approved the first complaints against Instagram posts. As the appeal period is still running, the decisions have not yet been published and therefore only the SRF article can serve as a source of information.
The Fairness Commission came to the conclusion that Iouri Podladtchikov and Jolanda Neff had each advertised unfairly via Instagram with one post.
The post by Iouri Podladtchikov was about the question of whether it was a personal post or whether the post had an advertising character and thus a labelling as advertising would be necessary. The Fairness Commission did not consider the photo to be a personal post because the picture showed a sports equipment supplier who is already Podladtchikov's sponsor and therefore the post should have been labelled accordingly.
A case from Germany has shown that the demarcation of private posts is not always very simple and clear. Cathy Hummels successfully defended herself against a warning and the court recognised the possibility of a private post or the possibility that a post does not have to be explicitly marked as advertising. In the specific case, however, no product of a sponsor or other partner could be seen on the picture. In addition, the court came to the conclusion that due to the high number of followers and the verified account, the advertising character of the account was already obvious. It remains to be seen whether this argument can be invoked across the board in the future.
The second complaint of the Fairness Commission that was upheld concerns a post on which credit cards of a Neff sponsor were shown without being clearly marked as advertising.
It should be clear by now, and has already been handled in a comparable way in foreign cases, that advertising posts must be marked accordingly. However, the type of labelling and the point at which it is sufficiently clear is still disputed. According to the NZZ, the Swiss decisions on this question are also not specific and there is still legal uncertainty.
It therefore always depends on the individual case to what extent labelling must take place. Hashtags such as #ad, #spons or #paid are often not easily recognisable in the post, which is why it is better to stop using them. More clearly recognisable hashtags are #sponsored, #advertisement or #advertisement. Again, these should not be hidden somewhere at the end or in the middle of a hashtag cloud. The safest option is a tag at the beginning of the main text. In the case of video contributions, the advertising nature of the contribution should also be pointed out verbally, and in Germany it will also usually be necessary to add the note "Dauerwerbesendung". Recently, several Youtubers in Germany have been warned due to insufficient labelling.
It is clear that if you as an influencer get paid directly or indirectly for posts on social media channels, the framework conditions under competition law must be observed.
This article was written by Yves Gogniat and Sergio Leemann.
If you have any questions on this topic, please do not hesitate to contact Sebastian Wälti .