On 31 January, the Swedish Patent and Market Court gave a judgment in a case against the company of the well-known Swedish influencer Alexandra Nilsson (also known as ”Kissie”) regarding improper marketing actions. This is the first Swedish court case concerning influencers’ social media activities’ non-compliance with the Swedish Marketing Act. The judgment is important since it clarifies how influencers shall handle posts that constitute marketing communication.
By way of background, the Consumer Ombudsman initiated court proceedings in relation to two blog posts and one Instagram post by Kissie arguing that they were not immediately distinguishable as marketing communication, that the identity of the marketer had not been clearly communicated and that Kissie, in the posts, wrongfully appeared to act as a consumer. All three posts contained marketing material promoting a website where you could recycle your mobile phone.
The court found that two of the posts were drafted and designed in such a way that it was not clear that they constituted marketing communication. In these two posts an advertisement statement had been placed at the end of the post and the posts were not distinguishable from regular posts. The lack of sufficient advertisement identification was also a decisive factor when the court assessed whether or not the identity of the marketer had been clearly communicated. Regarding the allegation that Kissie appeared to be acting as a consumer, the court deemed the marketing statement sufficient for Kissie to avoid having wrongfully appeared to be acting as a consumer.
The court’s reasoning in the judgement is interesting and will be important to understand for any influencer and marketing executive. Notably, the court did an overall assessment when adjudicating all three legal grounds. Amongst other things, the knowledge and profile of the average consumer in this specific case played an important role. Moreover, it is clear that the requirement that marketing communication shall be clearly distinguishable as such is strict and that it is not enough that the consumer understands that a post constitutes marketing communication after having read the entire post. The average consumer must understand that a post constitutes marketing communication already from a quick glance at it.
The Kissie judgement may be appealed to the Patent and Market Court of Appeal which is the court of record.
However, the court’s reasoning in the judgement now given provides some important guidelines for influencers posting marketing communication on their social media platforms. Preferably, an eye-catching banner with explicit language clarifying that the post constitutes marketing communication/an advertisement, should be set out in the beginning of the post or be designed to follow the reader’s eye movements when scrolling down the page. The banner or text should be in a different color and/or form than the rest of the text. Consideration should also be taken to the target group of the platform. More explicit language would probably be required if the content targets children and/or people above the age of 65.