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​​​​All eyes on influencers: new investigation in Poland

The question of applicable law to the influencer activities in Poland had remained unanswered for a long time. No guidelines or case law existed dealing specifically with the new form of advertising. In the absence of specific regulation, the general rules governing advertising are applicable. They are scattered across several acts. The main ones are the Competition and Consumer Protection Act, the Broadcasting Act, and the Act on Counteracting Unfair Market Practices.[1]

Although there is no regulation that explicitly designates how the promotion of a product should be labelled, it is assumed that it must be done explicitly and in no misleading way for the recipient.[2] In case of no disclosure paid promotion may constitute an unfair market practice or even an act of unfair competition. [3] Under the Act on Counteracting Unfair Market Practices, in case of surreptitious advertising consumers may demand that the unfair practice is discontinued, and its effects removed. Additionally, they can ask for compensation for the damage caused, cancellation of contract with the obligation of mutual return of benefits and that the trader refund the costs associated with the purchase of the product. [4] However, this Act does not define the term ‘advertising’ and this is particularly problematic in case of online marketing. The difference between editorial and advertising content is not clear cut. There is a growing need for new regulations to ensure appropriate standards for ethical advertising on social media. 

In September 2021, Polish authorities took first actions to solve the problems concerning an increasingly growing influencer marketing industry. The Polish Competition and Consumer Protection Office (UOKIK) decided to launch an investigation into illegal surreptitious advertising on social media after it found out that many posts are not marked by the influencers. An example of proper labelling is #advertisement, but not #ad as not all users know what this shortcut means. The office is scrutinising the relationships between advertising agencies and most popular internet personalities. They want to verify what caused influencers negligence and whether the sponsors require marking of the content. The investigated entities were asked to provide contracts concluded with brands. [5] A failure to hand over such information upon the request of the President of UOKIK can be punishable with a fine of  up to 50 million euro. [6] Some of the addresses did not respond to the letters. The proceedings for the imposition of a fine due to the lack of cooperation were initiated against some of the most popular polish influencers like Marek Kruszel,Marcin Dubiel and Maffashion Julia Kuczyńska.[7] While hoping for the self-regulation of the industry, the authority upon conclusion of its investigation is going to publish guidelines for influencers promoting products on social media. Recently, the Association of Internet Industry Employers has posted the first recommendations in Poland regarding influencer marketing. [8] However, it is yet to be seen whether the new stipulations are going to be applied in practice

Sources:

[1]ACT of 16 February 2007 on competition and consumer …https://www.uokik.gov.pl › download

Broadcasting act of December 29, 1992

The Act of 23 August 2007 on combating unfair commercial …https://www.uokik.gov.pl › download

[2] https://rpms.pl/influencerzy-pod-lupa-uokik-na-czym-polega-legalna-wspolpraca-z-influencerem/

[3] https://www.jdsupra.com/legalnews/polish-competition-and-consumer-1118279/

[4] Art. 12 §1 Act of 23 August 2007 on Counteracting Unfair Market Practices (Dz. U. 2017. 0.2070 i.e)

[5] https://insightplus.bakermckenzie.com/bm/consumer-goods-retail_1/poland-cooperation-with-influencers

[6] https://www.mondaq.com/social-media/1134910/ad-is-not-enough–influencers-under-scrutiny

[7] https://www.uokik.gov.pl/news.php?news_id=18063&news_page=1

[8] https://www.mondaq.com/social-media/1134910/ad-is-not-enough–influencers-under-scrutiny

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