Instagram and sponsored post – is it the Wild West?

Instagram influencer has become a career. On a daily basis, Instagram celebrities promote various brands-products-services for money or products and organize various giveaways.

How do the Advertising Act and Instagram relate to each other?

A sponsored post is an advertisement

According to the Advertising Act, advertising means information that is made public in any generally perceived form for a charge or without charge for the purpose of increasing the provision of services or the sale of goods, promoting an event, or directing the conduct of a person in public interests.

It is unlikely that any manufacturer-service provider would raise their hand and say that working with an Instagram influencer did not serve any of the above. Consequently, all advertising posts on Instagram should comply with the requirements of the Advertising Act.

According to the Advertising Act, advertising shall, given ordinary attention, be clearly distinguishable from other information and its content, design, and presentation shall ensure that it is recognized as advertising, in addition to the name, trademark or domain name of the person placing the advertising must be shown.

If there are no or extremely rare problems with the promotion of a business name, trademark, or domain in posts made on Instagram, then advertisements on Instagram can be criticized by not being clearly distinguishable.

If you open the Instagram account of any person who is a little better known in Estonia, the advertising posts are no different from ordinary posts: the image is of good quality and has a nice composition, of which the product is a part. In most cases, the caption has a hashtag and it is indicated that it is a collaboration or advertisement. At this point, however, one may ask whether this is sufficient to be considered clearly distinguishable given ordinary attention.

As you scroll through the Instagram feed, the user is first shown an image and then a few lines of text. If the first lines of the advertising post contain a hashtag referring to the person placing the advertising or an indication that it is a cooperation or advertisement, the requirement may be considered fulfilled.

However, if the hashtag or a reference to a collaborative ad is provided at the end of the description or in such a way that the user who sees the post has to make additional efforts to reach the hashtag, the fulfillment of the requirement is questionable and the post may be in violation of the Advertising Act.

Not everything can be advertised

In addition, when advertising on Instagram, you must also follow what products can be advertised. The Advertising Act prohibits, for example, the advertising of tobacco products, narcotics, weapons and ammunition, explosives and pyrotechnic articles, health services, and infant formulas.

For example, it is not possible for an Instagram influencer to promote fireworks received as sponsorship at their birthday party on Instagram. Nor can you introduce your followers to a new e-cigarette or infant formula.

Tips for Instagram advertisers

  • Make promotional posts with a clear hashtag and mark them so that the Instagram user does not have to make any additional clicks.

  • Check the Advertising Act to see if it is a product whose advertising is allowed. It is also in the interest of the influencer to comply with the law, namely the general terms and conditions of the Instagram state that illegal activities are prohibited. Therefore, reckless ad placement may, in the worst case, lead to the termination of a user’s account due to a violation of the Terms and Conditions.

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