Photo by Ben Kolde on Unsplash
Have you ever recommened or reviewed something on your blog? Have you tagged brands, friends, and places on Instagram? Have you ever thought twice about it?
The other week, I posted my ‘Monthly Favorites”. It’s been a regular post on my blog for a while and it’s one of my favorite posts to write. Not because it’s life-changing content (it isn’t), but because I simply love sharing the good stuff with you guys. And I appreciate when you share the good stuff with me, too. That’s what friends do.
However, I read something last week that made me stop and contemplate if it is ok to just “recommend” (and link) things on my blog and social media anymore. There are so many rules now.
Just to be clear, I am not making money of this blog (or other social media platforms) and I have never posted anything because I was asked to post a review or because I was offered something in return.
I have shared referral links in the past, but I always disclosed that they were referral links (where you and I might get a small incentive to try a service), but I want to emphasize again: those were never direct cooperations with the companies of these products. I wasn’t asked to pass them out, in fact, you’re not really supposed to “advertise” them, but only give them to friends and family. If you’re a customer, those referral links are automatically given out so you can spread the word if you’re happy with the services/goods they’re providing. That is also how mouth-to-mouth propaganda works.
So, what about sponsored content?
According to what I googled and read about the topic (and I honestly hadn’t really thought too much about it before), there only is a need to disclose that you’re writing/posting sponsored content when you actually have a relationship with a specific brand or company, which means you get paid or compensated to talk about them and share their products.
The Federal Trade Commission (FTC) has an endorsement guide about disclosing a material connection between advertisers and endorsers.
If there’s a connection between an endorser and the marketer that consumers would not expect and it would affect how consumers evaluate the endorsement, that connection should be disclosed.
It specifically says that if you have no business relationship with a product or business that you’re promoting, you don’t have to disclose. It also says that if you’re including links to product marketers or to retailers as a convenience to your readers, but are not getting paid for them, then there isn’t anything to disclose.*
Phew. Ok. That seems logical and reasonable, right?
Well, hold your horses.
Here’s what’s happening in Germany.
I am bringing this up, because I’ve recently become aware that, apparently, the EU (in general, and Germany in particular) has been going a little bit crazy lately with privacy laws, copyright restrictions, and yes, also covert advertisement warnings.
I’ve read that people (sorry, this is in German, but maybe you can use Google Translate to get the gist) got sued (or run the risk of being sued) for tagging places or companies in their Instagram pictures, because they didn’t label them as “advertisement”, even though they only shared it for fun and were not affiliated or compensated for anything.
I heard that some even got sued for tagging a friend — a FRIEND! — on Instagram, because it was suspected (with no factual basis, as far as I know) that the friend “compensated” them to do so.
This is a little bit insane.
Who is affected?
So far, it looks like the people that were targeted had larger follower numbers and had posted sponsored content before. The (maybe false) assumption is that if you posted sponsored content once, everything going forward is potentially sponsored content. So, while these new “rules” mainly target influencers, it pretty much has all German bloggers and social media users currently in a tizzy because everybody is confused and worried about how to use social media “correctly” in order to not get sued. I mean, as if the GDPR wasn’t enough already.
It also raises a few questions for me: When exactly is someone considered an influencer? Just exactly how many followers do I have to have to be considered an influencer? I am assuming that people with large followings are looked at first, but who says that you can’t have a ‘professional looking’ Instagram account and many, many followers without posting any ‘sponsored’ content? This is where the line gets blurry and where the grey zone begins.
I think the rule should simply be (and apparently is in the US right now) that you have to disclose if it IS sponsored content, you don’t have to disclose if you bought something with your own money and just recommend it to your followers. Period.
But the recent cease-and-desist warnings in Germany have practically led people to label EVERYTHING as advertisement (just to be on the safe side), even if they haven’t been compensated, are not affiliated with a brand, and have not been asked to mention a product, restaurant, place, or friend (← still can’t get over this one!).
I’ve been seeing all these (German) Instagram posts now that have a disclaimer at the beginning of each and every post that something is Werbung (advertisement) (as it should be), but also that something isn’t Werbung (Werbung ohne Auftrag – advertisement without contract).
Labeling everything as advertisement can’t be the answer.
If everything is labeled as ‘advertisement’ now, doesn’t that defeat the purpose of actually making real advertisement stand out to the audience? Doesn’t it mean that the desired distinction between sponsored and not-sponsored posts is being lost?
It seems like you can’t do anything on the Internet anymore without running the risk of being sued. I understand that covert advertising and sharing content without proper credit or disclosure are a big no-no (as they should be), but this is going a little bit too far.
I mean think about it, why is it ok to wear a t-shirt with a big brand logo in public, but you can’t wear the same t-shirt in a picture because you’re running the risk of being accused of advertising for the company? How often do we recommend something to a friend or co-worker, share where we bought a piece of clothing or home decor, or, or, or… . We should probably walk around with a #advertisement sign around our necks because that kind of advertising happens all the time.
Technically, these are all endorsements that encourage someone to go buy that same thing from that brand. The difference is that we’re not compensated for this kind of recommendation and I don’t think we shouldn’t be punished for it either.
A word of caution
I went back and purposefully looked through my Instagram again and I must say there are a ton of posts where people tag brands and companies, restaurants, cafés and places (me included) and there is no mentioning of advertisement (because I assume you, like me, don’t have sponsored content or otherwise you disclose it).
I assume that people, like me, tag on Instagram because this is what social media is for: we share because we like something and tag as a convenience to our readers. (Not sure how often I have been asked about an item or place in my pictures, so why not include the information from the get-go?)
However, I’ve definitely also seen posts that potentially *could* be sponsored posts and which are not properly labeled. I am not trying to stir up a discussion, it’s just something that I am more aware of now and maybe you should be, too. The FTC is not taking this to the level of Germany (yet), but there are rules in place that people should know about. If you are working with a company, make sure you’re on the right side, legally-speaking. (This article explains how to properly disclose sponsored content.)
I really hope that they’re getting a grip on these issues in Germany. I am all for protecting consumers and understand the need for clear rules and regulations, but if bloggers and Instagrammers are becoming the targets of lawsuits for merely showing a product or tagging a company or place that they’re not in any way affiliated with or compensated for, I am asking myself if these so-called “consumer protectors” are bored out of their minds or if they’re just after money?
This is a ramble. I don’t know if total transparency on the world wide web is possible, but I can’t imagine that tagging everything as advertisement is a solution to this particular problem. As always: a few bad apples ruin the fun for everybody else.
* This is what I read and how I understood it. This is not legal advice. Educate yourself.
17 thoughts on “On social media and sponsored content”
Oh my gosh, that is SO interesting and I had zero idea! I didn’t even know that you’re required to inform readers when you’re actually posting sponsored content. I assumed people I follow just do that because it’s the right thing to do. Maybe this is why so many people also clarify that they’re not sponsored when they recommend something just because they want to (maybe that’s what I’ll do if we start having these problems in the US…)
It seems like the right thing to do that you mention that you were compensated for reviewing a product or when you’re in any other affiliated with a company, but I guess things have gotten out of hand on social media. I always mention when I review an item that I haven’t been paid or compensated (just for transparency), but I guess too many people have dropped the ball on transparency, so now the government gets involved. I hope people start using common sense to keep things simple around the www.
You know, I see only problems here. It seems once that governmental agencies get involved things get all screwed up. I pay for my Blog. I do not use a free service, and I never have. If I talk about something I love, I always mention that I paid for it and my observations are my own.
I have a somewhat small following, and mostly I keep my Blog for myself and close friends and family. I say, keep the governments out of the Blog world.
Like I said, I think these regulations mainly target influencers (people with huge followings and therefore “influencing power”) but who says that they won’t start going around trying to target everyone, even the small blogs that don’t make any income. I don’t know… but I agree, they should stay out of the blog world.
Maybe if Germany hadn’t flamed out of the World Cup, this wouldn’t be an issue. All kidding aside, it’s a problem I hope will be resolved soon. I don’t feel we should be penalized for influencing readers if we endorse a product or establishment publically! All of the many burger and pizza photos I post would put me at risk.
Haha…. let’s not talk about the World Cup LOL
This topic has blown up over the past few months! I agree that if we are being paid or are compensated in any way including free products, it should be disclosed. I have turned down a quite a few offers because they were not things I would ever use. I will always be true to myself and my blog. Im not in it for the money by any means. But If I tag all kinds of people and places. You are right, thats what social media is all about. I hope they don’t start getting us for that. Thanks for sharing your thoughts!!
I feel like there must have been some people who were not transparent that have led to more scrutiny or something… but it’s ridiculous that you have put a disclaimer on EVERYTHING now. That’s not how it’s supposed to work.
Thank you so much for sharing this. As someone involved in influencer marketing (I work as an account manager) I’ve had to be very careful with FTC disclosures and making sure that our influencers abide by all regulations. We are very recently stepping out and working with more European brands, so it’s definitely something I’ll need to investigate further. Thankfully, all content when published must be (and is) disclosed, but it does raise a lot of issues that I think are unfair to influencers. Content should ONLY be labeled as an #ad if there was money exchanged to promote that product/place/whatever. It just doesn’t make sense to dive deeper than that, because as you said, wouldn’t we have to walk around with a disclaimer if we are wearing a shirt clearly marked with a brand’s name?? So silly, and I’m so sorry to hear that anyone is getting heat for this (even for tagging friends. WUT?!).
XO and hope you have a lovely weekend, my friend!
I feel like there should be some “common sense” here, too…. it sounds like the group in Germany that is sending out the cease-and-desist letters are just out to ‘scare’ people and make money of their fear and insecurity and that is not right.
Oh wow, that’s really intense and very confusing. I hope the FTC keep things the way they are and don’t go the way of Germany, because it does make it really difficult to just recommend things. I always mention if I’m compensated – money or free product – but I don’t tell people if it’s just something I bought or did myself and want to share about, and I don’t think you should have to! It makes simply recommending things such a chore. And it’s true about your question on what makes an influencer? I don’t know!
There must have been some ‘bad apples’ that didn’t care about being transparent and that ruins it for everybody else. I feel like it’s common sense to say when you’ve been compensated for a review, but I guess there is a grey zone and the legal group in Germany is trying to take advantage of it.
This really does take out all the fun of blogging here in Germany to be honest. And just after going through the GDPR stuff.
On a more professional level (as I am working as a Social Media Consultant) I also believe it will through back Germany and brands having to abide by the laws. Gaining market share in Germany is just not possible and comparable to other markets now.
Anyhow I just hope someone fast is getting a grip on it because this is just all some crazy bs.
Thanks for sharing and making aware of it.
Gosh this seems like an example of going completely overboard. Yikes. I haven’t done sponsored posts or content in a very long time. I used to do it occasionally and clearly labeled those posts as being sponsored. But now I want complete control over what I write so I won’t do that anymore. I do tag places and restaurants occasionally on IG because I feel like local people will wonder where the running path is that I’m on or where they can get the yummy dish I am enjoying.
Hopefully the FTC doesn’t take things so far in the US!
It has been insane here in Germany – people are super confused about how to do it correctly and it’s taking every bit of fun out of it entirely. Why should I have to mark something as “Werbung” when I paid for it myself and just want to share it with my friends!? Makes me consider not sharing any kind of brand on my IG anymore at all!
But I guess that’s what happens when some don’t play by the rules bc they think they are not obliged to as they have a huge following and can do whatever they want. Now we all have to deal with the consequences of that kind of behaviour – thank you for nothing!
That is SERIOUSLY nuts and you should feel free to tag a restaurant in your Instagram post if you want without having to declare it’s not sponsored! I usually do that so my local friends know where I’m eating and also for the restaurant because I know it helps them to get Insta tags. I think this whole thing is a much bigger problem for influencers and people who do a LOT of sponsored content. I know a lot of bloggers who do so much spon con that with every post, I’m just searching for that “sponsored” disclaimer somewhere on their Insta story or image or blog post.
This is so, so tricky & I think there has to be a balance. To me, if someone is getting paid to go on a trip or has been given an item, that should be disclosed. But if I go to my favorite bar and drink their beers & tag them, that just seems different to me. But I get that’s confusing and it’s hard to keep it all straight. But knowing the difference is important, as a consumer, so we can make smart choices.
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