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.