Influencer marketing is one of the fastest-growing forms of online marketing in the long term, which consists of a collaboration between a brand and an influencer who makes products or services visible to the brand.
From a narrow legal perspective, it is a commitment by an influencer to perform the marketing activity in question for another person (most often a commercial company interested in presenting the product or service) for a fee, under the terms agreed in the contract. This relationship is not specifically and in detail regulated in our legal system, but this does not mean that such activity is not covered by the legislation (Advertising Act, Consumer Protection Act or other specific regulations for a specific product). Following the example of other countries, a group of influencers, agencies and advertisers have taken the initiative to create a code of influencer marketing, which presents best and professional practices that all influencers should primarily adhere to in influencer marketing, but which also applies to advertisers, advertising, media and digital agencies at the same time.
The purpose of the Code is to set out the basic principles and ethical rules for influencers and commissioners in their joint commercial activities, to assist influencers, commissioners and commissioners in the creation and dissemination of advertising content through influencer marketing in a way that complies with the basic rules of universally accepted morality and social responsibility. Eliminate the negative consequences of influencers' actions in influencer marketing, which arise in particular concerning not labelling advertising, lying or misleading about their own experiences with products, using other people's content without the necessary consent, creating and promoting content that abuses human dignity and incites hatred, or abuses the trust of minors, and also regulates the procedures for breaches of the rules in the creation and dissemination of commercial content in influencer marketing.
It is important to emphasise that the Code does not replace legal regulation in the area of the creation and dissemination of advertising content, but only specifies some legal rules and builds on them by setting out additional ethical principles. The content of the Code applies to all advertising content created or disseminated by influencers via the internet in the context of or in connection with a paid collaboration.
The Code is directly binding on each Signatory in any paid collaboration with another Signatory and is also directly binding on each Influencer who is a Signatory in any paid collaboration with any other non-Signatory. Signatories who are not influencers (i.e. the commissioner and the commissioning party) are advised to require compliance with the Code not only from signatories but also from non-signatories through a collaboration agreement. For those who are not bound by this Code, this Code is a recommendation.
The Influencer is obliged, in any paid collaboration, to respond properly and on time to the Client's questions and suggestions regarding the Code and to transparently indicate its relationship to the Sponsor, brand or product so that this indication is always clearly visible and communicated in all sponsored Influencer outputs. Influencers must not lie about their experience with a product or deliberately conceal important experiences related to a product when creating and distributing content as part of a paid collaboration, use content created by a third party without the consent of the rights holder of that content, promote the health effects of products if these effects are not verified based on the principle of "Evidence-Based Medicine". Further, an influencer may not promote the sale of drugs, alcoholic beverages, tobacco products and gambling if the influencer has a proven fan base of at least 30% of the audience under the age of 18. The influencer must avoid particularly irresponsible and socially harmful behaviour and expressions when creating and disseminating content in the context of paid collaborations, such as interference with human dignity and the fundamental rights and freedoms of others, promotion and support of racial, gender, sexual, national, religious or other intolerance, promotion and support of violence against people or animals, vandalism, or violation of laws and regulations, abuse of the trust of minors, in particular incitement to behaviour which may endanger their health, psychological or moral development or the portrayal of them in dangerous situations, the promotion of irresponsible consumption of alcoholic beverages, tobacco products or other addictive substances, or the promotion of products the sale of which is prohibited. As both the Influencer and the Client are obliged to comply with the current applicable legislation when creating and disseminating advertising content, notwithstanding the provisions of this Code, and may be held liable or jointly liable for any breach thereof, it is recommended that the Influencer and the Client familiarise themselves with and comply with these regulations before commencing paid collaboration.
Any influencer, commissioner - advertising, media, digital agency or commissioner who commits to follow the rules set out in the Code through the website: www.kodexinfluencermarketingu.sk can become a signatory.
A Commission has been set up to ensure compliance with the Code. It assesses and evaluates the validity of complaints, which can be submitted by any individual via an online form.
In the event of a violation of the Code, the Commission is empowered to take action against the person who committed the violation, both against signatories and other entities (not signatories). In the event of a violation of the Code by a signatory, the Commission will issue a written warning to the offending signatory and invite him/her to remedy the deficiencies within 3 working days, and at the same time warn him/her that in the event of failure to remedy the deficiencies, the Commission may decide to remove him/her from the list of signatories. Reinstatement of an excluded signatory on the list of signatories shall be possible, at the request of the excluded signatory, only based on a decision of the Commission taken not earlier than six months from the date of the decision of the Commission to exclude the signatory from the list of signatories. If a non-signatory engages in influencer marketing in violation of the provisions of the Code, the Commission may inform such person of this fact and recommend that he/she comply with the provisions of this Code. In the event of a gross violation of the provisions of this Code or repeated conduct in violation of the Code, the Commission shall also have the authority to inform the signatories of this fact and recommend that they consider working with the such person on a paid basis. The Commission is empowered to decide to publish the results of investigations into complaints about compliance with the Code, either on the website or by other appropriate means.
The problem we see with the Influencer Marketing Code is that, on the one hand, it states that the advice given by the Commission to signatories is not binding, but on the other hand, it makes it an obligation for the commissioner to refrain from paid collaboration with influencers who, in the course of their commercial activities through influencer marketing, act in flagrant contravention of the provisions of the Code, regardless of whether such influencers are bound by the Code or not. The Code also does not define gross contravention of the provisions of the Code.
The Influencer Marketing Code came into force and into effect on 23.9.2022. For six months from the date of entry into force (the so-called implementation period), affected parties in breach of the provisions of the Code will be notified of the breach, but without the further consequences envisaged by the Code (mentioned above). After this period, the provisions of the Code will become fully applicable.