The Consumer Authority’s guidance on labelling advertising in social media

This guide is about how people who post advertisements in social media need to label the posts in order to comply with the Marketing Control Act. The guide also provides an overview of other rules in the Marketing Control Act that are often relevant when using social media as an advertising channel.

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The guide is mainly intended for people who are paid or receive other advantages for mentioning or posting something about products, services or traders on their profiles on social media or in blogs.

If you post advertisements, you can be held liable for breaches of the Marketing Control Act, and such violations of the law can have financial consequences for you. The same rules also apply to advertisers, networks and advertising agencies that cooperate with you. Background information about the law that everyone involved has a liability to comply with is provided in the section ‘What the law says’.

Introduction

The contents in brief

  • In ‘What do I need to label?’, you will find an explanation of when the legal provisions concerning advertising apply.
  • In ‘How must I label advertising?’, we explain how advertising needs to be identified.
  • In ‘What else do I have to think of?’, we remind you about other rules it is important to be aware of when advertising in social media.
  • In ‘’What the law says’, we explain what legal rules we have based this guide on, and point out that they also apply to advertisers, networks and advertising agencies that cooperate with you.

The guide applies to all social media, for example blogs, Facebook, Instagram, Twitter and Snapchat.

If you make videos and have your own channel on YouTube or on other video-sharing platforms, such as a website dedicated to video clips, you must comply with special rules in the Broadcasting Act.  The Norwegian Media Authority is to the enforcer of this Act. They have produced a guide for YouTubers and bloggers. Any videos that you upload to other social media must comply with the rules in our guide.

About the Consumer Authority

We supervise traders to make sure that they comply with the Marketing Control Act in their marketing, commercial practices and contractual terms and conditions.

This guide describes key requirements we derive from the Act and what criteria we apply when enforcing the Act. We use words like ‘shall’, ‘must’ or similar to indicate what requirements follow from the Act. You are breaking the law if you do not comply with these requirements. When we write ‘should’, ‘can’ or similar, this means that we have not decided whether it will be in breach of the law in all cases to not meet these requirements, but that we will consider this in each individual case. If you want to be completely sure that you are never breaking the law, you should comply with both the ‘shall’ and ‘should’ requirements.  Please note that other rules than those dealt with in this guide can also be relevant.

What do I have to label?

What exactly is advertising and marketing?

Advertising and marketing are everything that can contribute to promoting a trader’s sale of a product or service, and that you post because you are paid or receive other advantages for doing so.  Marketing is often called advertising. When we write advertising in this guide, we mean all forms of marketing.

Examples of advertising:

  • You are paid to post something about a product, a service or a trader. This is advertising regardless of whether you post your honest opinion or whether the ones that have paid you decide what you post.
  • You are lent something, get things free, are invited to take part in events or trips, or are given free services or discounts, in return for an expectation that you will mention this or give it exposure.
  • You have a general agreement to promote a trader (e.g. as an ‘ambassador’ or ‘partner’). This applies both if it has been agreed that you will post particular things, and if you describe or give exposure to goods or services that can be identified with and have a marketing effect for the trader.
  • You organise competitions or hand out ‘giveaways’ for a trader.
  • You use advertising links for which you are paid, for example per click or purchase. All exposure or mention of the trader you link to that can increase the traffic to the links is also advertising.
  • You run your own business and post advertising for it. For example, you might have your own clothes collection or web shop and what you post on your personal profile in social media or on a blog helps to promote sales of goods or services that you have a financial interest in. This applies regardless of whether you are engaged in business on your own or in cooperation with others.

The labelling requirement applies in all media. A post must be marked as advertising every time the product or service is mentioned or given exposure in a way that has marketing value.

If, for instance, you include advertising in a blog post, you also have to label posts on Facebook, Instagram or Snapchat that promote the blog post. It is not permitted to invite followers to access an advertising post without drawing their attention to the fact that it is advertising.

At forbrukertilsynet.no, you will find a list of frequently asked questions. It can be useful to read them if you are in doubt about what you need to label. (Only available in Norwegian).

Our recommendation is that, if you are in doubt, you should nonetheless label a post – that way you avoid breaking the law. It is never wrong to be honest and clear with your followers.

If you post advertising on YouTube or other video-sharing platforms, you must comply with the special rules in the Broadcasting Act. Read the Norwegian Media Authority’s guide to advertising on YouTube and other video-sharing services.

How must I label advertising?

You decide yourself how to label it, as long as the requirements of the law are met so that the advertising is clearly identifiable as such. Everyone must be able to recognise that it is advertising before or at the same time as they see what you have posted, regardless of whether they are regular followers or they access content you have posted by chance. In this guide, we call everyone who sees content you post ‘followers’.

It must also be apparent who you are advertising for.

Placing and design of labelling

For it to be clear that it is advertising, the marking must be:

  • in a prominent position
  • written in a clear font
  • in a big enough font.

A prominent position means that the label must be placed so that it is immediately visible. Think about how you can label your post so that it will also be clear that it is advertising if it is shared, and so that those who do not follow you regularly will also understand that it is advertising. It must never be necessary to search or scroll down a post to discover that it is advertising. It is a good rule of thumb that the labelling of the advertising should be the eye-catcher when a post is viewed.

The labelling can be too unclear, for example, if it is:

  • placed too far down
  • near the edge of the screen
  • written in a small font
  • close to an eye-catching image.

The font can be made clear by using a different colour or by emphasising it in other ways.

As a minimum, the labelling should be of the same font size as other text in the post. If the font size of the labelling is too small compared with other text, for example a heading, it is easy not to notice it, in which case you risk breaking the law.

If you post advertising links, you must mark them in addition to the post itself.

Use clear wording

It is important that you use unambiguous wording that everyone can understand. The following words are clear enough:

  • advertising
  • commercial promotion

Other words and phrases, for example ‘in cooperation with’. ‘competition’, ‘recommendation for’ and ‘affiliate links’ do not explain that the post is advertising.  By using words like this or other words that are not as clear as ‘advertising’ or ‘commercial promotion when labelling, you risk breaking the law. The same applies if you label the post itself with ‘adlinks’. What you post together with advertising links is also advertising, and your followers must be able to understand that the whole post is advertising.  If the post contains advertising links, you can label the post with ‘advertising’ or ‘commercial promotion at the beginning of the post, and use the word ‘‘advertisement link’ to label the links themselves as they appear in the post.

You should be consistent as regards what terms you use to label something as advertising. If you use too many different terms about something that is essentially the same thing – i.e. advertising – the result could be that it is unclear whether or not it is advertising, in which case you are breaking the law. Instead, if you wish, you can explain in more detail in your post why you have marked the post as advertising.

If the content is in Norwegian, the labelling must also be in Norwegian. This means that words like ‘ad’ or ‘adlinks’ are not clear enough.

Names of advertisers

It must always appear from your post who you are advertising for. It is sufficient that this is explained in the post or that it is clear from the context, e.g. in cases where it is evident which advertiser is promoted.

Examples of good labelling in different media

You decide yourself how to label the advertising content as long as the requirements set out above are met. Below are some examples of how you can label advertising content in different media:

Blog:

Illustrasjon av god merking av reklame på blogg

For your readers to understand when you are advertising on your blog, you must label the post at the top so that it is the first thing readers see. In addition, you can, for example, also use a different layout or background colour for posts that contain advertising.

If you write a post that contains both advertising and other, non-commercial content, you still need to include labelling at the top of the post.

If you sort the posts on your blog into categories  with tags such as ‘Food’, ‘Everyday life’ and ‘Miscellaneous’, and you also have a separate tag for posts that contain advertising, this is not necessarily clear enough labelling in itself. For this to work as labelling of advertising content, you should highlight the tag for advertising, so that it does not disappear among all the other tags.

Instagram:

Illustrasjon av god merking av reklame på Instagram

The clearest method is to label the image itself on Instagram. You can also label the image with #advertising or write ‘commercial promotion’ first in the caption. It is not clear enough to write ‘advertising’ at the very end of a long list of hashtags or at the end of a long text.

It is not clear enough to just tag the image with the profile name of the trader you are advertising for.

Facebook:

You can place the labelling in the status field, or you can, for example, make sure that it is clear from the title of your post. If you post links to advertising in other media, such as a blog or Instagram on your Facebook page, both the original post and your sharing of it on Facebook must be labelled as advertising.

Snapchat:

Illustrasjon av god merking av reklame på Snapchat

On Snapchat, you can label advertising by writing a clear text on the image or by using other methods so long as it is clearly recognisable as advertising.

Twitter:

On Twitter, the labelling should be placed at the beginning of the text or somewhere else where it is clearly visible compared with other text. If you share an advertising post from a blog or other social media on Twitter, you must also label your tweet.

What else do I have to think of?

Exercise caution in relation to children

The Marketing Control Act is interpreted more strictly when children and adolescents are the target group for advertising.

The prohibition against hidden advertising is especially important for this group. Children and adolescents are active users of social media, and it is more difficult for them to understand what is advertising and to distinguish it from other content. This means that if you have followers who are under 18, you must take extra care to clearly inform them what is advertising in language that children can understand.

It is also prohibited to directly exhort or encourage children to buy something or to persuade their parents or other adults to buy a product for them. Examples of direct exhortations can be of the type ‘Come and buy’ or ‘Ask your mum to pick up the product at the nearest shop’. Sales pitches like: ‘the next time you buy…’, ‘is available in your toy shop’, ‘take mum and dad with you to …’, ‘click here and use the discount code xyz’ etc. can also be illegal.

When we consider whether advertising violates the prohibition on directly exhorting children, we emphasise which target group will typically be exposed to the advertising. We also examine

  • How clearly the exhortation to buy or persuade parents is worded, including what impression the advertisement gives.
  • In what way the advertising is aimed at children, e.g. in media that target children directly and individually.
  • How easy it is to buy the advertised product, e.g. whether it is possible to buy it directly by clicking a link

If young children are your target group, it can be illegal to mix advertising in with other content even though you label it, because it will not be evident to them what is and is not advertising even though you label it clearly.

Some products are not suitable for advertisements if you have followers under the age of 18. Examples of marketing in social media with young followers that the Consumer Authority has intervened in include slimming products, consumer loans and cosmetic surgery.  If you are uncertain whether a product is suitable for marketing on your profiles in social media, you can contact us for guidance.

Incorrect, misleading and illegal advertising

When you publish advertising, you are liable for ensuring that what you post is correct and does not give the wrong impression to your followers.

Even if you include a link to a website where consumers can get more information about what you describe, you are responsible for the marketing you publish being correct. A good rule of thumb is to ask yourself whether you have given a correct representation of what you describe, so that there is no risk of people being misled or given false expectations.

In addition to labelling advertising, you must therefore think about the following when posting advertising:

  • Are the claims I make about the product correct? Can they be documented?
  • Have I mentioned the most important aspects of this product so that my followers do not get the wrong impression? For example:
    • Is the price of the product correct? Are there additional expenses it is not possible to avoid if someone buys the product?
    • Is it clear whether I am advertising a subscription or a one-off purchase?
    • Is it clear what terms and conditions apply to participation in competitions I organise?

In addition, there are special rules that other supervisory bodies than the Consumer Authority are responsible for supervising and enforcing.  For example, you should be aware that it is not permitted to advertise for tobacco, alcohol, unauthorised gambling or illegal products.

What the law says

In the following, we explain what rules we have based this guide on.

Prohibition against hidden advertising and identification requirement

Pursuant to the Marketing Control Act (MCA) section 3 first paragraph, all marketing shall be designed and presented in a way that makes it clear that it is marketing. This means that marketing should not be difficult to recognise and identify as such.

If marketing is not labelled sufficiently clear, this will constitute a misleading omission of information in contravention of the MCA section 8. All marketing that infringes the MCA section 8 also constitutes a breach of the ban on unfair commercial practices pursuant to the MCA section 6 first paragraph, cf. fourth paragraph.

Furthermore, special regulations concerning particular forms of commercial practices that are always considered unfair contain a ban on “falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.”

The Electronic Commerce Act section 9 first paragraph requires that the person on whose behalf marketing is carried out shall be clearly identifiable.

Protection of children

The Marketing Control Act has a separate chapter, Chapter 4, on the protection of children, which entails that the provisions of the Act must be interpreted more stringently when advertising is directed at children, when it can be seen or heard by children or if it is of particular interest to children. In Section 20 second paragraph, the prohibition, in the Regulations relating to Unfair Commercial Practices, against direct exhortations to children to purchase advertised products, or to persuade their parents or other adults to do so, incorporated in the Act.

The rules protect children as vulnerable economic actors, but they are also intended to protect children against advertising that is offensive or that offends against general ethical or moral views, for example by playing on social insecurity, or using aggressive methods that play on sexuality. Marketing products that are not suitable for children in channels with young followers could raise questions about whether it is in breach of these provisions. The Consumer Ombudsman has previously intervened against advertisements for slimming pills and consumer loans in blogs aimed at a young target group.

Incorrect and misleading advertising

The Marketing Control Act contains several rules that are intended to ensure that consumers are not given incorrect information or get the wrong impression from marketing. The main rules concerning misleading commercial practices are set out in the Marketing Control Act Sections 7 and 8, cf.  Section 6 on unfair commercial practices. The rules mean that information about the most important characteristics of goods and services, including their price, must be correct and not misleading.

In addition, it is stated in Section 3 second paragraph that it must be possible to document factual claims, such as the properties or effect of products. The advertiser must possess such documentation when the marketing takes place.

The advertiser’s and network’s responsibility

The advertiser is principally liable for breaches of the law. In addition, everyone who makes a significant contribution to the advertising can be held responsible for violation of the Marketing Control Act, including those who publish the advertising. When profiles on social media are used for marketing purposes, this can entail a risk for the advertiser because people who are used to spread marketing are not necessarily experienced marketers. The advertisers therefore have a particular liability to ensure that the marketing complies with the Marketing Control Act. The same applies to networks, platforms, advertising agencies and other intermediaries that facilitate marketing on social media and blogs.

Advertisers, networks, platforms and advertising agencies should therefore make sure that they specify requirements for the design and contents of the marketing.  They should also have control mechanisms in place to ensure that the people they use to spread the marketing comply with the law. In addition, networks and platforms should consider what steps they can take to help people to whom they give marketing assignments to obey the law, e.g. by giving them guidance and assistance.

Supervision and sanctions

When traders infringe the Marketing Control Act, the Cancellation Act, the Financial Agreements Act or other pieces of legislation that the CA enforces, the CA may prohibit this conduct (MCA § 40) and impose administrative fines (MCA §§ 42 and 43). Natural or legal person that are accessories to infringements, may also be the subject of decisions by the CA. The CAs decisions may be appealed to the Market Council (MCA § 37).

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