Those who regularly follow posts by foreign influencers will probably have noticed labels such as #AD, #sponsored, or something similar.
The same practice should have become standard among Slovenian influencers by 26 January 2023 at the latest. However, a quick review of popular Instagram accounts in early February showed that Slovenian influencers were not yet fully up to date with the applicable legal requirements.
As the penalties for non-compliance can be substantial, we would like to remind them to align their business practices with the law as soon as possible, before the Market Inspectorate intervenes.
What are influencers required to do?
Every influencer post featuring a product or service for which the influencer has received compensation must clearly indicate that it is an advertisement. The post must also identify the party that commissioned the advertisement.
Consider a simple example. An influencer visits a restaurant and eats excellent pancakes without having to pay for them. The influencer then shares a photograph of the pancakes and tags the restaurant that provided them free of charge.
This constitutes advertising, regardless of whether the influencer genuinely enjoyed the pancakes. The free meal was the benefit received in exchange for publishing the post and sharing it with followers.
It may be highly cost-effective promotion for the restaurant, but it is still promotion.
Compensation may be monetary, material or experiential. Receiving payment in fiat currency or cryptocurrency is therefore not the determining factor when deciding whether a post constitutes advertising.
For example, if an influencer is invited on a free trip that includes a horse-riding activity and subsequently promotes that experience on their profile, the influencer has received the benefit of the all-inclusive trip. The related post must therefore be clearly labelled as an advertisement.
What changed on 26 January 2023?
A new Slovenian Consumer Protection Act entered into force, introducing new provisions concerning the clear identification of advertising and the disclosure of the party commissioning it in all advertising messages that form part of, or constitute, an information society service.
This was not a change in the sense that influencers had previously been exempt from the obligation to identify advertisements. They were already required to do so under the previous legislation.
The significant change is that the party commissioning the advertisement may now also be held liable for a violation.
Because the advertiser may also be sanctioned, it must ensure that its agreement with the influencer clearly requires the influencer to identify the content as advertising and to disclose the identity of the advertiser.
We recommend that influencers and companies working with them align their practices with the legal requirements as soon as possible. This is important not only because of their statutory obligations, but also because of their responsibility to communicate transparently with their followers.
We would be pleased to assist you with this process.