Facultad de Ciencias Jurídicas - Unidad AA3 Jurídicas Zientzia Juridikoen Fakultatea - LA3 Juridikoen Unitatea
Edificio de Las Encinas / Arteak eraikina Campus de Arrosadia / Arrosadiko Campusa 31006 - Pamplona-Iruñea
Tel. (+34) (+34) 948 16 6203
TRABAJO FIN DE ESTUDIOS / IKASGAIEN AMAIERAKO LANA PROGRAMA INTERNACIONAL DEL DOBLE GRADO EN ADE Y DERECHO
………
LEGAL ANALYSIS OF THE ACTIVITY OF INFLUENCERS IN SOCIAL NETWORKS: SURREPTITIOUS ADVERTISING.
Ainhoa Boneta Ruiz
DIRECTOR / ZUZENDARIA Aránzazu Pérez Moriones
Pamplona / Iruñea 10/01/2023
2
ABSTRACT
The evolution of traditional media towards social media has brought about relevant changes in the advertising sector, including the emergence of the influencer as a communicator of commercial content. Given this reality, surreptitious advertising has also spread, and is currently present in social networks such as Instagram, endangering the principle of authenticity. This paper is aimed at analysing the activity of influencers on social media, with an emphasis on subliminal advertising carried out by them. For that purpose, the concepts of social media, influencers, and advertising are deeply addressed.
Additionally, the regulation and self-regulation of advertising are discussed in depth, and the functioning of the AUTOCONTROL body is explained. Finally, some decisions of the JPA in which the authors of advertising are influencers are analysed.
KEYWORDS: surreptitious advertising, influencers, social media, principle of authenticity, AUTOCONTROL
RESUMEN
La evolución de los medios tradicionales hacia las redes sociales ha provocado cambios relevantes en el sector publicitario, entre ellos la aparición del influencer como comunicador de contenidos comerciales. Ante esta realidad, la publicidad encubierta también se ha extendido, y actualmente está presente en redes sociales como Instagram, poniendo en peligro el principio de autenticidad. El presente trabajo tiene como objetivo analizar la actividad de los influencers en las redes sociales, haciendo hincapié en la publicidad subliminal llevada a cabo por ellos. Para ello, se abordan en profundidad los conceptos de redes sociales, influencers y publicidad. Además, se profundiza en la regulación y autorregulación de la publicidad y se explica el funcionamiento del organismo AUTOCONTROL. Por último, se analizan algunas resoluciones del JPA en las que los autores de la publicidad son influencers.
PALABRAS CLAVE: publicidad subliminal, influencers, redes sociales, principio de autenticidad, AUTOCONTROL.
3
INDEX
ABBREVIATURES ... 4
I. INTRODUCTION ... 5
II. SOCIAL MEDIA ... 8
1. Evolution of traditional media ... 8
2. Social media today ... 10
3. The functioning of social media: Instagram ... 12
III. INFLUENCERS ... 16
1. Concept of influencer ... 16
2. The role of the influencer: advertising on social media ... 20
IV. ADVERTISING ... 22
1. Concept and evolution of advertising ... 22
2. Surreptitious advertising ... 24
3. Surreptitious advertising on social media ... 29
V. AUTOCONTROL ... 31
1. Introduction ... 31
2. Pre-advice tools ... 33
3. Codes of Conduct ... 36
4. AUTOCONTROL’s Jury of Advertising (JPA) ... 38
5. Analysis of decisions of the Jury of Advertising ... 40
5.1 Particular (Transfronteriza ASA) vs. Paulina Eriksson ... 40
5.2 Particular vs. Samsung Electronics Iberia, S.A. ... 42
5.3 Asociación de Usuarios de la Comunicación (AUC) vs. Influencer ... 44
5.4 Particular vs. L’OREAL Spain S.A. ... 45
5.5 Particular vs. Influencer. ... 48
VI. CONCLUSIONS ... 50
ANNEX ... 53
CONSULTED SOURCES ... 56
4
ABBREVIATURES
Art./Arts. Artículo/Article/Artículos
AEA Asociación Española de Anunciantes
BOE Boletín Oficial del Estado
CCPA Código de Conducta Publicitaria de Autocontrol CNMC Comisión Nacional de los Mercados y Competencia
CNMV Comisión Nacional del Mercado de Valores
ICC International Chamber of Commerce
IMCO Internal Market and Consumer Protection
JPA Jurado de Publicidad de Autocontrol
LCD Ley 3/1991, de 10 de enero, de Competencia Desleal, núm.
10, de 11 de enero.
LGCA Ley 13/2022, de 7 de julio, General de la Comunicación Audiovisual, núm. 163, de 8 de julio.
LGP Ley 34/1988, de 11 de noviembre, General de Publicidad, núm. 274, de 15 de noviembre.
Núm. /Num. Número/Number
Pág. /Págs. /pp. Página/Páginas/Pages
RAE Real Academia Española
RJ Reglamento del Jurado de la Publicidad
5
I. INTRODUCTION
The present paper is aimed at carrying out an analysis of the activity of influencers on social networks, focusing mainly on the study of surreptitious advertising and the mechanisms that have recently been developed to combat it.
With the emergence of social media networks and their exponential growth, some profiles on social networks began to gain followers reaching figures that led them to have a significant impact on the rest of the members. The people behind these accounts were named “influencers” due to their power to influence others that had less reach. In fact, the influencer has become something of a product too, as other users consume their content.1
In order to better understand the current situation, we should first refer to how the impact produced by the “influencers” functions. In a few words, this can be explained as the effect that is generated on a product, service, or brand as a whole when the influencer shows it on their networks.2 The subsequent section named “Influencers” will be dedicated to the explanation of the influencer-world, as means to offer a deeper illustration of its functioning and how influencers achieve to have that power.
Nevertheless, and as a brief introductory remark, it could be highlighted that this world works in a similar way to that of celebrities. Influencers use the admiration or sense of identification that citizens feel to get them to consume their content, which includes recommendations or reviews, which are, among others, their way of advertising. Faced with this situation, brands saw a clear marketing opportunity, and this is where the new form of advertising through social networks came into play.3
All this has inevitably led to the now-obvious evolution of advertising. Today, some of the traditional means of advertising are maintained, but it is undeniable that digitalization together with social networks has given a 180-degree turn to the way of
1 BALANCHE, D., CASALÓ, L.V., FLAVIÁN, M., & IBÁÑEZ SANCHEZ, S. “Understanding influencer marketing: The role of congruence between influencers, products and consumers”. Journal of Business Research, num. 132, 2021, pp. 186-195.
2 MARTÍNEZ LÓPEZ, F.J., ANAYA SÁNCHEZ, R., FERNÁNDEZ GIORDANO, M., & LÓPEZ LÓPEZ, D. “Behind influencer marketing: Key marketing decisions and their effects on follower´s responses”. Journal of Marketing Management, num. 36(7-8), 2020, pp. 579-607.
3 BALANCHE, D., CASALÓ, L.V., FLAVIÁN, M., & IBÁÑEZ SANCHEZ, S. “Understanding influencer marketing: The role of congruence between influencers, products and consumers”. Journal of Business Research, num. 132, 2021, pp. 186-195.
6
understanding, consuming, and, consequently, regulating advertising. Therefore, it is essential to research and assess these changes and their effects, as proposed in this project4.
If we go back to the beginning of the history of advertising, the radio was the pioneer in communicating this brand-owned content. Later, television and other paper media such as newspapers and magazines started to include advertisements, which facilitated the massive dissemination that took place in the following decades. With the passing of time, the amount of advertisement has increased unstoppably, becoming one of the most effective forms of marketing in existence. In recent years, due to the strong impact of digitalization, advertising has undergone a major change. New technologies and social and digital platforms have taken over a large part of the sector, becoming one of the most useful and profitable ways of reaching potential consumers. In fact, these new tools make it possible to consume faster, more personalized, and visual advertising, as it will be addressed below.
In the midst of this change, the figure of the influencer takes on an important role, becoming a very effective advertising communicator. Even though not all advertising is delivered through these characters or placed on social networks, it is becoming more and more common for brands to collaborate with them. As a result, new techniques for eluding legality have also arisen, and for that reason, regulation has been required to adapt to these changes. Precisely, the emergence of modern advertising forms and their significance make research into this area important in order to determine if the current regulatory framework is working effectively and how to counteract subliminal advertising from the perspective of social media, as is done in the present study.
The methodology followed in this research work consists of analysing different sources in which the basic concepts of the research, such as advertising and its evolution, social networks or the role of the influencer, as well as the current regulation of subliminal advertising, and the AUTOCONTROL organism, are reflected. As this is a current subject, it is essential to combine a bibliography and digital documentation such as websites, where the most up-to-date information can be found. It is also essential to know and examine the functioning of social networks in order to be able to understand the figure being analysed.
4 https://www.europarl.europa.eu/RegData/etudes/STUD/2022/703350/IPOL_STU(2022)703350_EN.pdf
7
The paper is divided into five main sections. First, a chapter will be devoted to the explanation of social media, starting from the evolution of traditional media and going through the current media platforms and the functioning of Instagram. The second section will cover the concept and role of influencers. Next, advertising will be addressed in a chapter that will deal with its concept and evolution, the explanation of surreptitious advertising, and its presence on social media. The fourth section will be devoted to AUTOCONTROL and will be also divided into four subsections concerning the three main tools and services provided by the organization and finishing with the analysis of some resolutions and opinions provided by the Jury of Advertising. The fifth and last section will present the conclusions of this research project.
8
II. SOCIAL MEDIA
1. Evolution of traditional media
The emergence of social networks has triggered numerous changes in various areas such as the media industry and, therefore, advertising.5 In order to address the reality of social networks, it is interesting to go back to what not so long ago predominated as a social medium. Among them, we can highlight television, written press, and radio6. In recent times, traditional media has been in the midst of a critical situation denominated “crisis of traditional journalism”. Hence, the industry has suffered a decline in its earnings and advertising proceeds. In fact, the economy of the aforementioned media depends mainly on the advertising that is inserted in them, which, as a consequence of the digital revolution, has diminished, giving way to this new epoch in which more and more advertising is found in social networks.7 Despite the fact that the worsening has impacted the traditional sector as a whole, there are several studies that confirm that the written press has especially undergone difficulties in the latest ages8.
If we inspect closely figure 4 situated in the annex9, we will clearly come to the conclusion that this media has experienced a clear downward trend in the most recent times, which has resulted in a drop in written press readers in the last decade.
Nevertheless, the fall has not been caused by the cessation of content consumption by citizens; this change has been the result of the aforementioned digitalization, which has forced these media to modernize. As a result, more and more newspapers and magazines now have a digital option, which in many cases includes paid or under-subscription content.
5 APPEL, G., GREWAL, L., HADI, R., & STEPHEN, A.T. “The future of social media in marketing”.
Journal of the Academy of Marketing Science, num. 48(1), 2019, pp. 79-95.
6 https://www.ccaward.com/the-difference-between-traditional-new-
media/#:~:text=Traditional%20media%20includes%20print%20media,the%20Internet%20and%20social
%20media.
7 https://nuso.org/articulo/la-triple-crisis-de-los-medios-de-comunicacion/
8 RAJENDRAN, L., & THESINGHRAJA, P. “The impact of new media on traditional media”. Middle East Journal of Scientific Research, num. 22(4), 2014, pp. 609-616.
9 See figure 4 in the annex
9
The same happens for television and radio stations. These three main traditional media have been obliged to follow a very similar pattern of evolution. In the case of the press, the main change has been the creation of the digital version. Regarding television, more and more channels have online formats such as Mitele; owned by Mediaset, Atresplayer belonging to Antena 3, or RTVE play. Through these platforms, traditional television is combating the impact generated by social networks and other digital platforms such as Netflix or HBO. Finally, radio stations have also joined this change, creating podcasts and programs for digital consumption, in order to adapt to modern times10.
This strategy allows the aforementioned media to gain a larger audience than they would have with their regular broadcasts alone, and in this way mitigate the loss of consumers they are suffering as a result of technological change. But at the same time, and as anticipated in previous paragraphs, they have all followed a new and similar line of business which consists of including under-subscription content in their digital platforms, or even creating specific sites for this purpose; examples of this are Mitele Plus or Atresplayer premium.
To understand the motives behind this tactic, we must examine the issue from an economic point of view, as it is a manoeuvre that is undoubtedly connected to the intention of slowing down the fall in revenue that has resulted from the loss of readers, listeners, and audience. As it will be explained below, this decline is accompanied by a reduction in the advertising that is placed in the traditional media, which ultimately translates into a reduction in their main source of revenue11.
In a nutshell, two main drivers of the change can be identified, which are often difficult to distinguish and order. On the one side, there is social evolution; the expansion of technology and its accessibility, especially among millennials and generation Z, has led citizens to transform their habits in such a way that those who used to read newspapers, watch the news on television or listen to radio programs can now access all that content more quickly and conveniently with a smartphone, tablet, or computer. And
10 FRANCO DE PRADO, D. “Medios de comunicación tradicionales en el nuevo entorno digital”. 2016, págs. 13-22.
11 BENAISSA PEDRIZA, S. “Medios escritos versus digitales: de la agónica de periódicos a los nuevos consumos de información digital”. Argonauta español, núm. 16, 2019.
10
what is more, they are able to surf the internet and find what they are looking for at any time and at any place12.
On the other side, and almost hand in hand with, or as a consequence of the former, we find the decline in media revenues. As long as the population is no longer so present in these traditional media, advertisers do not invest in them as much as they did in the past. The motive behind this phenomenon is the following: what advertisers seek is to achieve the greatest possible reach, that is to say, that the advertisement reaches as many people as possible, in order to have a higher impact. Therefore, the fewer citizens who consume traditional media, the less advertising is found in them, as it moves to other channels that provide greater profitability, as is the case of social networks13.
In conclusion, it must be beard in mind that the media are just like any other business; they seek to make a profit. It is therefore not surprising that, given the undeniable evolution we are experiencing, more and more mediums are making their way into the digital world.
Having dealt with the most recent evolution of traditional media, we will now move on to a section in which we will explain the reality of social networks, which have arguably taken over a large part of the business.
2. Social media today
Social media is defined by the Cambridge Dictionary as “websites and computer programs that allow people to communicate and share information on the internet using a computer or mobile phone” and also as “forms of media that allow people to communicate and share information using the internet or mobile phones”.14
Today, they have become tools not only for leisure but also for business as their success involves that many of the companies’ targets are present on diverse social
12 RAMOS GUTIÉRREZ, M., & FERNÁNDEZ BLANCO, E. “La regulación de la publicidad encubierta en el marketing de influencers para la generación z: ¿Cumplirán los/as influencers el nuevo código de conducta de Autocontrol?” Revista Prisma Social, núm. 34, 2021, págs. 61-87.
13 MONTEMAYOR RUIZ, F. J., & ORTIZ SOBRINO, M. A. “Los medios de comunicación en los eventos:
el poder de la televisión”. F@ro: Revista Teórica del Departamento de Ciencias de la Comunicación, núm.
23, 2019, pág. 128.
14 https://dictionary.cambridge.org/dictionary/english/social-media
11
platforms. In this way, firms are presented with a great opportunity to connect with their consumers and even attract new ones in an almost casual form. With the purpose of knowing more in detail about their magnitude, some data from the most successful social platforms today will be presented next.
According to Hootsuite´s annual digital report15, the most used social networks by February 2022 were Facebook (2,936 million users) and YouTube (2,476 million users), followed by WhatsApp (2,000 million users), Instagram (1,440 million users), and WeChat (1,288 million users). Additionally, the bulletin remarked on the exponential growth of TikTok (1,023 million users).16 These data are presented in figure 5 situated in the annex.17
Moreover, the report also included a section dedicated to the analysis of the most successful social platforms used to access digital news. Again, the same ranking was created: Facebook (44%) followed by YouTube (30%), WhatsApp (22%), and Instagram (17%). Particularly, in Spain, the number of social media users amounted to 40.7 million, according to the paper published by “We are social” in February 2022.18
From this data, it can be concluded that the trend continues to be toward greater use of social media, as the number of social network users increases unstoppably.
Moreover, not only does the sum of enjoyers expand, but also its utilities and impact are doing so. These applications, which a priori were designed for social use, are being integrated into all kinds of sectors and are becoming valuable and fundamental support in countless professional activities.
Once the current social media landscape has been presented, we will continue to explain its functioning, as means to comprehend what the function of the influencer consists of and to connect it to the role it plays in the world of digital marketing. To that end, Instagram will be taken as a model social network. The numbers that have been presented above demonstrate its success, and despite its fourth-place ranking, it is a
15 https://blog.hootsuite.com/es/informe-digital-estadisticas-de-redes-sociales/
16 https://blog.hootsuite.com/es/informe-digital-estadisticas-de-redes-sociales/
17 See figure 5 in the annex
18 https://wearesocial.com/es/blog/2022/02/digital-report-espana-2022-nueve-de-cada-diez-espanoles- usan-las-redes-sociales-y-pasan-cerca-de-dos-horas-al-dia-en-ellas/
12
platform that has become a leader in marketing and advertising19. For these reasons, we understand that it is the ideal network on which to base the explanation of the functioning of social media.
3. The functioning of social media: Instagram
Instagram is a popular app that allows users to share photos and videos freely. The network offers the possibility of uploading media content to a profile and enables members to share it with their followers or a reduced group of friends. The app also allows users to view, write comments, and like others’ publications.20 It was founded in 2010 by Kevin Systrom and Mike Krieger and subsequently acquired by Facebook Inc., which is currently named Meta Platforms. Although it has suffered numerous updates and modifications since it was first launched, the network still maintains its essence: it was created in order to provide users with a digital space in which to share their multimedia content.
The network works as follows: each user has a profile to which he can upload content already stored in his phone gallery, or even post photos or videos that he captures in situ. Once the images are published, the followers of that profile or other users of the network are able to interact with them in multiple ways. Apart from that basic function, the application also contains other features, such as a chat that enables Instagram users to send and receive messages from their followers21.
In this day and age, Instagram has developed into the predominant network for advertising and marketing on the grounds that the tools it offers allow it to turn out to be the best advertising panel for companies and particular brands. 22 To begin with, we must bear in mind that this social platform was born from the thought of creating a space in
19 SIXTO-GARCÍA, J., & ÁLVAREZ-VÁZQUEZ, A. “Influencers en Instagram y la publicidad engañosa:
La necesidad de regular y autorregular”. Estudios sobre el mensaje periodístico, 26(4), 2020, págs. 1611- 1622.
20 https://help.instagram.com/424737657584573
21 https://help.instagram.com/424737657584573
22 SIXTO-GARCÍA, J., & ÁLVAREZ-VÁZQUEZ, A. “Influencers en Instagram y la publicidad engañosa:
La necesidad de regular y autorregular”. Estudios sobre el mensaje periodístico, 26(4), 2020, págs. 1611- 1622.
13
which to share pictures captured with the mobile phone. Nevertheless, some years after its creation, its owner Mark Zuckerberg decided to modify the interface of the application, seeking not only for the user to upload their photos, but also to consume the content of others.23 It was at that time that the section “Explore” was incorporated into the social network. This page allowed the users to discover profiles and content that were unknown to them, based on an algorithm that considered the posts they liked and the people they followed.
Over the subsequent years, the evolution of the platform continued, and various updates took place, incorporating new features. The “Stories”, long videos or “IGTVs”, and the possibility to shop directly through the application using the “Shop” section were part of the innovations that were introduced between the years 2015 and 2020.
“Stories” consist of an Instagram function that allows users to publish temporary content accessible for 24 hours. To denote the most recently shared “stories”, a coloured border appears around the user’s profile picture.24 It is therefore an alternative that permits content to be published temporarily unless the user decides to highlight it, which means that the “story” remains fixed in the profile.
When it comes to advertising content, this is one of the most popular publication modalities, as it allows influencers to introduce campaigns or adverts in a rather natural way. Influencers habitually use stories to publish a more relaxed and spontaneous feed, which seems to be less prepared. In those temporary posts, they explain their day-to-day lives and show part of their routines, in many cases. Thus, they take advantage of this dynamic and introduce, among other topics, recommendations of products, restaurants, and experiences, so that advertising appears in a way that seems casual. As a consequence, it is not surprising that this practice is one of the most problematic ones and the origin of the majority of surreptitious advertising cases. However, this issue will be discussed in forthcoming sections.
The tool named “IGTV” stands for Instagram TV, and it is also known as Instagram video. The following paragraphs have been extracted from the Instagram
23 CABRERA DE LLANOS, M. “Instagram: la nueva era del consumo. Análisis de la evolución de la red social” Trabajo de Fin de Grado en Publicidad y Relaciones Públicas, 2019.
24 https://blog.hubspot.com/marketing/instagram-stories
14
business page, in which the incorporation of the feature in question was presented as follows:
Five years after the launch of video on Instagram, we are excited to introduce Instagram Video which brings audiences closer to the creators they love. We are re- envisioning mobile video with a new standalone surface that features longer videos and easy discoverability through channels, all in a vertical format that sits upright, in the palm of your hand.25
The company also pointed out several of the applications that this new tool could have, as well as some of the advantages linked to it. Among them, we can highlight its simplicity and intuitiveness, together with its suitability to get closer to the audience and attract new consumers. In fact, these are some examples of attributes that support the success of Instagram as a digital marketing tool.
The “Shop” section was a further novelty launched in 2018. As described in the help-web of the network, it is a collection of Instagram features that allow users to explore and purchase through photos and videos. It provides companies an engaging storefront where consumers may discover their best products”. 26 This utility has the main advantage of serving as a storefront for enterprises, which through their business profiles reach network users. In addition, the so-called shop tags give the possibility of tagging products so that the user is redirected straight to the brand's website or application. What is more, the latter is highly useful for advertising, since creating new adverts which include shop tags or boosting the already current shopping publications in Ads Manager and Instagram application, may improve the reach of that content, generating greater engagement.
The variety of content alternatives offered by the social network partly justifies its popularity, but it is not the only reason behind its success. Instagram has managed to keep millions of users around the world hooked every day and the key to this fame could be due to a combination of the subsequent points: first of all, it satisfies the human necessity to keep up to date with everything that happens around us. In fact, in recent years, this demand has been increasing in proportion to the speed at which the news reaches us. In other words, nowadays it is possible for developed countries to be updated on the current
25 https://business.instagram.com/a/igtv
26 https://help.instagram.com/191462054687226/?helpref=uf_share
15
situation almost live, and consequently, the feeling of the need to be constantly informed intensifies. Instagram satisfies that desire by simply entering the application.
In addition, another reason for the popularity of social network is that it serves as a way to disconnect. While the user is immersed in the social network, he does not worry about his own problems but rather entertains himself by viewing content that distracts and entertains him. This is a very powerful tool that television programs, for instance, also make use of. Moreover, a further key to Instagram's success is given by its very nature and one of the objectives for which it was launched: to create a network that allows users to stay connected to their circles, and nowadays, even to the social world27.
The latter idea has developed to a point where, as noted above, the social network has become a business model, from which a large number of influencers make a living.
And this is another and the last of the essentials to Instagram's fame that we will comment on: the effectiveness, the freshness that the platform brings to businesses and its tools for reaching users have made the application a format that brands increasingly trust, making it gain popularity in the business sphere as well.
Once these specific concepts have been clarified, the following lines shall be dedicated to the description of the role of the influencer; that is to say, what their job consists of. This will make it simpler to comprehend their relevance in the world of advertising, which indeed, will be the ensuing chapter of the present research work.
27 LIROLA PINO, C., MARTÍN PERALES, R., & MARTÍN PUEYO, E. “Nuevas vías para la publicidad. Análisis de la red social Instagram”. Trabajo Fin de Grado en Publicidad y Relaciones Públicas, 2015, págs. 18-20.
16
III. INFLUENCERS
1. Concept of influencer
At this point, and once the current social media reality has been discussed, we shall focus on the figure around which we are going to develop this research work. In order to subsequently address the conflict that arises as a result of subliminal advertising on networks, we must previously get to know the creator of this content. Consequently, we will devote the upcoming sections to trying to define the aforementioned concept, as well as to explaining what their role on the networks consists of.
To begin with, it is essential to point out that providing a definition for
“influencer” is tough, as there are multiple approaches and business models that look upon diverse factors on which to base their descriptions. Hence, we will now proceed to examine a number of those meanings with the goal of offering a complete version of the concept of influencer.
Based on a study requested by the IMCO committee28, it can be concluded that there are a few key factors that must be met in order to consider an individual as an influencer. The aforementioned paper is a research on the impact of influencers on advertising and consumer protection in a single market and devotes a section to the analysis of the concept of influencer, as it is intended in this project. The conclusion extracted from the literature review carried out by the investigation is that the most reiterated features that form the criteria to define an influencer are the audience, the service provided, and the source of revenue.
The following are some of the definitions of influencer contained in the publications covered by the research paper:
1. “Independent third-party endorsers who shape audience attitudes through blogs, posts, tweets, and the use of other social media”29
28https://www.europarl.europa.eu/RegData/etudes/STUD/2022/703350/IPOL_STU(2022)703350_EN.pdf
29 The European Advertising Standards Alliance (EASA). “Best Practice Recommendation on Influencer Marketing”, 2018.
17
2. “A recent social media phenomenon which reflects endorsement practices by individuals with a significant social media audience, with the purpose of increasing online engagement for the endorsed product or service”30
3. “Person who has an audience that is entertained through a channel”31.
4. “An individual who through their expertise in a specific topic creates original content and offers their unbiased opinion to an audience gained through word-of-mouth communication that voluntarily has determined them to be a referent and trusts their opinion”32
5. “A person who has a greater than average reach and impact through word-of- mouth in a relevant marketplace, and influencer marketing relies on promoting and selling products or services through these individuals”33
After careful consideration of these definitions, a series of ideas can be extracted, that form the subsequent interpretation: despite the fact that there are different approaches when it comes to labelling a user as an influencer, what is clear is that there is a pattern that is repeated, as anticipated at the beginning of the section.
Firstly, one element to bear in mind is the audience. This factor can be understood in a double sense: the quantitative and the qualitative. On the one hand, when referring to the audience of a content creator, we can be alluding to the number of visitors they have or the reach of their publications in terms of quantity. Nonetheless, the latter does not necessarily have to be associated with quality.
While it is true that a large number of followers can lead to an individual becoming an influencer, this is not always the case. The reality is that it appears to be useful to gain credibility, since when a profile is followed by a large number of people, the perception of the rest of the common users tends to improve, contributing to the profile’s growth.
However, it can not be taken as an isolated factor; that is, the number of followers must
30 GOANTA, C., & RANCHORDÁS, S. The regulation of social media influencers: an introduction, Edward Elgar Publishing 2020.
31 TRZASKOWSKI, J. “Identifying the Commercial Nature of ‘Influencer Marketing’ on the Internet”.
Scandinavian Studies in Law, 65, 2018, pp. 81-100.
32 MORTEO I., 2017, To clarify the typification of influencers: A review of the literature.
33 European Commission, 2018, Behavioral study on advertising and marketing practices in online social media. https://ec.europa.eu/info/publications/behavioural-study-advertising-and-marketing-practices- social-media-0_en
18
go hand in hand with other equally or more relevant criteria such as communication, the relationship of trust with the user, and with the brands that decide to work with the content creator and the engagement, which is an indicator that measures how engaged the audience is, based on their comments, likes, shares, and interactions. Therefore, one of the elements that are repeated in the literature is the ability to influence the audience and make them trust the influencer, as well as the effectiveness of the communication and the popularity of the individual.
As far as the service offered is considered, this constitutes the second relevant factor to be contemplated when defining an influencer. In a few words, it involves the creation of original content, which is felt authentic and relatable to the followers, together with the provision of unbiased opinions. Indeed, it is the latter that gives rise to the problem under analysis in this study, since a distinction must be made between opinions, assessments, and recommendations that are given voluntarily and without any profit motive, and those that, on the contrary, are the result of an advertising contract.
Nevertheless, this trouble will be covered in subsequent sections when dealing with surreptitious advertising on social media.
Lastly, the third relevant element that influencers share is the source of their income. This factor brings together several ideas: on the one hand, it refers to the monetization of the work carried out by influencers, in the sense that one of the keys to distinguishing an average user from an influencer is that the latter charges for his professional content. And on the other hand, it refers precisely to the origin of this professionalization, which is derived from the advertising contracts that brands offer to these people and that consequently bring commercial intent to their job.
In a nutshell, it can be understood that influencers are content creators who seek to build a community based on communication and trust with their audience while engaging with commercial actors through diverse business models for monetization objectives and following commercial interests.
The origin of this term is simple to understand, as an influencer is a person who influences others; specifically, through social networks. Some of the reasons behind their power of persuasion are the following: the admiration that other users come to feel for them, the feeling of identification that they experience, or even the need to belong to a community that some social media consumers undergo. Additionally, the influencer must
19
work hard to construct a relationship based on trust. These motives, among others, lead citizens to feel influenced by what influencers publish, demonstrating that they believe in them.34
Besides, it is relevant to explain that nothing happens by chance; the influencer tends to focus on a certain audience as if it was its target. Consequently, in social networks such as Instagram, we can identify different categories such as familiar profiles, other more youthful ones, some linked to fashion, others focused on cooking, traveling, and a long list of varieties. It could be stated that there is a profile for every taste, and professionals know that.
In relation to the latter, it is interesting to highlight a gala that was held on October 5th by the hand of Forbes: "Forbes Best Influencers 2022". Precisely, these types of events and their relevance in the media are clear examples of the strength that the figure of the influencer is acquiring and the repercussion that social networks have at the current level.
In line with what has been explained in previous paragraphs, the prizes were awarded according to different categories. Some of the winners were the following:
María Pombo (2.8 million followers on Instagram), founder of Name the Brand, was named the best digital entrepreneur. In the fashion category, the winner was Marta Sierra (1.3 million followers on Instagram), and concerning lifestyle, Marta Diaz (3.3 million followers on Instagram) was the best. Jordi Koalitic (5.6 million followers on Instagram) won the award for best creative influencer; besides, in the travel field, Gotzon Mantuliz (666,000 followers on Instagram) was the winner. Melo Moreno (631,000 followers on Instagram) won the Positive Change award from Forbes. Lastly, Aida Domenech (3.2 million followers on Instagram as Dulceida), was named the Best Influencer 2022.35
Therefore, it is clear that there is a multitude of areas within the social network in which influencers specialize. These categories are not only useful when it comes to awarding prizes, but they are also taken into consideration by companies and brands that decide to bet on advertising through these public figures. In other words, not only do influencers centre their content on one of these market niches but also, companies look
34 https://grin.co/blog/psychology-of-influence/
35 https://forbes.es/mejores-influencers-2022/
20
for the ones that best match their target audience. Moreover, we must be mindful of the significance of the economic perspective involved in the decisions of enterprises. That is to say, the strategy that firms follow is not casual, but entails a deep study in which different elements are considered.
As businesses seek profit, they must carefully examine the costs related to advertising, together with its effectiveness. Consequently, experts develop analyses in which the different options for promotion and advertising are considered. In the case of social media, the price varies according to diverse factors such as the competitiveness of the industry, the segmentation, and the time of the year at which the advert is launched.
For instance, on Christmas and Black Friday the cost increases notably. The cost also depends on the kind of advertising that is desired: picture, story, video, carousel, collection, and shopping ads are some of the most common types that can be found on Instagram.
We bring this section to a close to continue with the subsequent one, which will deal with the explanation of the role played by influencers in the world of social networks.
2. The role of the influencer: advertising on social media
Although it may seem complex, the influencer’s job can be divided into two diverse but closely related categories. The first one consists of publishing personal content, and the second one involves the production of promotional publications. While not all influencers do this to the same extent, the vast majority of them end up succumbing to advertising, as it allows them to make a profit from their publications and in turn, professionalize their profiles36.
The main difference between both kinds of posts is that whilst the initial one is usually self-made content, without any specific norm to be followed, the second one is somehow preordered by the brand. That means that the influencer is hired under a contract
36 TAILLON, B. J., MUELLER, S. M., KOWALCZYK, C. M., & JONES, D. N. “Understanding the relationships between social media influencers and their followers: The moderating role of closeness”.
Journal of Product and Brand Management, num. 29(6), 2020, pp. 767-782.
21
in which some mandatory indications have been included and the content creator must comply with them.
As it happens in other media, the professionals that are employed to hold these positions in which they appear as images of certain brands, do so under some guidelines that must be met. That is why, when influencers are recruited to show a product or service or talk about a specific brand on their social media profiles, they do it while being conscious of those compulsory criteria set up by the hiring companies. Besides, and in spite of the fact that it may often seem that the post is spontaneously published by the influencer, the reality is that behind it, there is a premeditated strategy. It is precisely from this false idea of spontaneity that misleads social media consumers, that the problem we are dealing with in this paper arises: surreptitious advertising on social networks.
Moreover, the fact that influencers post the two types of content described above contributes also to confusion among users. In other words, unless the content creator clearly denotes that what he is publishing constitutes advertising content, it appears to be hard for the social media enjoyer to distinguish between personal and under-contract content. We will return to this issue in the subsequent sections when subliminal advertising and its presence in social networks are presented.
The next section will be devoted to a deep explanation of advertising as a concept and also to its presence on social media, leading to the analysis of subliminal advertising carried out by influencers. It will consist of 3 sections, moving from the more general to the specific. The first part will be dedicated to the description of the concept as such, gathering the basic ideas from the world of advertising. The second one will address a more specific area: subliminal advertising. And lastly, and in line with previously discussed issues, the chapter will close with a section dedicated to subliminal advertising in social networks.
22
IV. ADVERTISING
1. Concept and evolution of advertising
To begin with, and previous to any other explanation, we must start by providing a definition for the concept of advertising. To that end, there are two main sources that shall be considered. The Real Academia Española defines advertising as “The dissemination of news or advertisements of a commercial nature to attract potential buyers, viewers, users, etc.”37 On the other hand, based on article 2 of the General Law on Advertising, any form of communication made by a natural or legal person, whether public or private, in the exercise of a commercial, industrial, craft, or professional activity, with the aim of directly or indirectly promoting the contracting of movable or immovable property, services, rights, and obligations38 is considered advertising.
In short, advertising can be considered a marketing practice used to draw in potential consumers through the communication of commercial intended content with the purpose of promoting the purchase of the good or service in question. Although the concept has remained fairly static over time, its surroundings have evolved considerably leading to relevant variations in the media, tools, and delivery of this content. The following lines will cover the evolution that advertising has suffered in the most recent times, emphasizing the triumph of social networks as a stage for advertising39.
Economic growth and heightened rivalry made it necessary for businesses to advertise their goods and services starting in the 1940s. As a consequence, customers were able to select the article they desired from a variety of options in that fashion.
Nevertheless, the product was the main focus of those times' advertising efforts rather than the audience and their requirements.
The 1960s saw a broadening of product and service offerings relative to demand, prompting market segmentation and product differentiation. Afterward, goods were no longer mass-produced but rather created based on what would sell. At this point, a marketing philosophy started to take hold and eventually supplanted the production
37 https://dle.rae.es/publicidad
38 Ley 34/1988, de 11 de noviembre, General de Publicidad, BOE núm. 274, de 15 de noviembre.
39 https://cei.es/evolucion-de-la-publicidad-a-traves-del-tiempo/
23
philosophy in such a way that the benefits and features of the product were highlighted through advertising.
Up to the 20th century's end, the later trend would only gather ground.
Nevertheless, during the year 2000, advertising started to adapt its strategy due to the advent of computers. Advertisers realized that evoking emotions in the viewer produced better effects than simply highlighting a product's features.
The advertising industry would be no longer the same as it was before social networks became popular. Consequently, the consumer was brought into focus, and advertising turned more approachable and personal. Additionally, the consumer gained decision-making power, and his involvement with brands and opinions appeared to be crucial. From this point forward, the customer and the fulfilment of their requirements or difficulties served as the central focus of all marketing tactics. Hence, nowadays, customer and business communication is two-way. Furthermore, the price of advertising on digital platforms was also decreased because users now had to engage with the ads rather than merely seeing them40.
One of the most prominent media platforms, YouTube, was the first to incorporate advertising as a means of attracting sponsors and earning money. It became one of the most significant search engines on the market as a result. Although advertising has evolved over time, there have been advancements made in the sector as customers can now more easily access information and have a better overall experience.
In a nutshell, there have been numerous significant changes affecting advertising since its inception. Users now choose what they want to see or learn about, and advertisements are currently targeted. As a result, there has been an improvement in the interaction between businesses and clients.
As a result of the evolution, the influencer has become a crucial figure and powerful advertising communicator. Consequently, they are increasingly being partnered with by businesses. But similar to most changes, it has also brought with it certain problems, including the one that concerns us in this analysis: surreptitious advertising.
40 https://cei.es/evolucion-de-la-publicidad-a-traves-del-tiempo/
24
2. Surreptitious advertising
One of the most relevant ethical principles in the world of advertising is the principle of authenticity. The purpose of this fundamental is to ensure the identifiability of the advertising character of any communication.41 In other words, it requires that every publication that shall contain advertising content be shown as such, making the user aware of it. In short, the meaning of this principle is that the consumer is conscious at all times and from the beginning of his exposure to the media that he is consuming advertising.
The principle of authenticity is included in various legal instruments of Spanish Law, such as the LGP in its articles 3 and 9 and also on the codes of conduct of AUTOCONTROL42. We will address the legislation in detail in the subsequent lines, following an outline that goes from the most specific and up-to-date legislation on the subject to the most extensive one.
To start with, article 122 of the recent General Law on Audiovisual Communication (LGCA43) contains the most comprehensive legal definition of covert advertising that is also the most pertinent for the present day. Undoubtedly, the law is constantly adapting to current times, and it is the most recently created regulations that contemplate modern cases such as surreptitious advertising on social networks. We must thus focus our attention first on the aforementioned law, namely on article 122, which incorporates such restriction.
Article 122. Absolut prohibitions on certain audiovisual commercial communications.
Surreptitious audiovisual commercial communication which, by means of the direct or indirect verbal or visual presentation of goods, services, names, brands, or activities, intentionally has an advertising purpose and is likely to mislead the public as to the nature of such presentation, is prohibited.44
41 http://institucional.us.es/revistas/publicidad/12/A5_Megias-Quiros_El-principio-de-autenticidad-en-la- comunicacion-comercial.pdf
42 https://www.autocontrol.es/
43 Ley 13/2022, de 7 de julio, General de la Comunicación Audiovisual, BOE núm. 163, de 8 de julio.
44 Art. 122 LGCA
25
If we take a closer look at this article, we can highlight several aspects that are relevant. Firstly, the wording begins by referring to covert audiovisual communication of a commercial nature, therefore establishing a clear delimitation of the situation to which it refers. This is a factual assumption that includes the practice of subliminal advertising in a digital environment, which allows us to frame in it covert advertising on social media.
Secondly, it lists the alternatives in which this content can be communicated: direct, indirect, verbal, or visual, as well as a series of forms in which it can be materialized:
products, services, names, brands, or activities. Finally, the article refers to the purpose or intentionality that must be present in the practice to be prohibited, which is a commercial objective that is likely to mislead the public.
This article is yet another example of the impact that evolving technologies have had on legislation. In fact, the decisions and rulings of the Jurado de la Publicidad de AUTOCONTROL (JPA) have gradually shaped and adapted the content of various precepts to new forms of communication such as social networks.45 Moreover, based on the opinion of the fourth section of the Jury, dated 28 November 2019, we can establish the three necessary assumptions determined by the JPA to identify a case of surreptitious advertising: firstly, it must pursue an advertising purpose or a promotional purpose.
Secondly, it is required that this purpose or aim is not clearly identifiable by the addressee.
Lastly, the failure to include warnings that explicitly and sufficiently inform the public of the said purpose constitutes the third premise.46 However, this is only a preliminary indication of the fundamental role that the JPA now occupies in the field of advertising.
As a consequence, we will devote the subsequent section to a detailed explanation of AUTOCONTROL and the JPA.
The second legal instrument in our line of explanation is the LGP, which regulates the subject of analysis in a broader way than the previous norm. Nevertheless, before examining it, it is worth highlighting the 1964 Statute on Advertising47 which was repealed by the aforementioned law, and which incorporated the concepts of legality,
45 MEGÍAS QUIRÓS, J.J., & CABRERA CARO, L. Ética y Derecho en la publicidad. Comares Editorial S.L., 2013.
46 Dictamen de la Sección Cuarta del Jurado de la Publicidad de Autocontrol, de 28 de noviembre de 2019, Particular (transfronteriza ASA) vs. Paulina Eriksson, “Auriculares sin etiquetar influencer. RRSS”, FD 3.º
47 Ley 61/1964, de 11 de junio, por la que se aprueba el Estatuto de la Publicidad, BOE núm. 143 de 15 de junio de 1964.
26
truthfulness, and loyalty, which together with the previously discussed notion of authenticity constituted the four basic foundations of advertising that are crucial for spotting instances of illegal and covert advertising.
The principle of legality refers to the fact that advertising must respect the Law and Constitution. Moreover, the legislation stipulates that advertising must adhere to the principle of truthfulness, which states that the features of the good or service must match reality. Lastly, the obligation to respect ethical business conduct, the good faith principle, and other market competitors is formed by the loyalty principle.
In consequence, starting from the knowledge of the four general principles governing advertising, we can formulate a definition or a way of identifying in which circumstances we find ourselves in the presence of unlawful advertising: those cases in which the general principles explained above are not complied with.
Moreover, article 3 of the LGP regulates illegal advertising, as follows:
Article 3. Illegal advertising.
- Advertising which violates human dignity or infringes the values and rights recognized in the Constitution, in particular, those referred to in Articles 14, 18, and 20(4) thereof, which prohibits discriminatory advertising.
Since 20044 it includes advertising messages that present women in a vexatious or discriminatory way.
- Advertising directed at minors that incites them to purchase a good or service, exploiting their inexperience or credulity, or in which they appear to persuade parents or guardians to purchase.
- Subliminal advertising.
- Advertising in breach of the provisions of the regulations governing the advertising of certain products, goods, activities, or services.
- Misleading advertising, unfair advertising, and aggressive advertising shall be considered acts of unfair competition under the terms of the Unfair Competition Act.
27
Additionally, article 9 on the same legal instrument provides the following:
Article 9.
The media shall clearly distinguish between claims made as part of their informative function and those made as mere advertising vehicles. Advertisers shall also unambiguously disclose the advertising nature of their advertisements.
These two articles illustrate, on the one hand, the legislative framework for unlawful advertising techniques and, on the other, the duty placed on marketers to disclose the presence of commercial content in any event in order to protect the principle of authenticity.
Finally, this section should not be ended without expressly referring to the Unfair Competition Act (LCD). This law, which has been in force since 1991, also covers the factual assumptions that concern us in this legal analysis. Its relevance is notorious and is considered to be the basis for most of the aspects regulated in subsequent norms whose subject matter is advertising. Its relevance on the topic leads us to devote some lines to its explanation and to highlight that in spite of not having the nowadays existing specific and updated legal instruments that have been already described, the path to follow would conduct us to the LCD, a broader norm that foresees and regulates the topic.
The latter instrument is formed by various sections that contain articles going from the most generic to the most specific situations. As a consequence, we must examine them in order to fit our assumption of fact in one of those articles. For the purposes of the study of surreptitious advertising, the most relevant articles are 5, 7, and 26 of the aforementioned law. From the first two, we can draw a relevant conclusion, which is that the legislator subjects surreptitious advertising to a double classification: on the one hand, as an act of deception and, on the other hand, as a misleading omission.48
The broad prohibition of deceptive acts is found in article 5, which stipulates that communications must be capable of misleading the addressees and must influence their economic behaviour as requisites to consider the act deceptive. In addition, a list of aspects can be found on which such deception must fall, and among which we should highlight paragraph d): “The scope of the commitments of the entrepreneur or professional, the motives for the commercial conduct and the nature of the commercial
48 https://uvadoc.uva.es/bitstream/handle/10324/40116/TFG-E-769.pdf?sequence=1&isAllowed=y
28
transaction or contract, as well as any statement or symbol indicating that the entrepreneur or professional or the good or service is the object of a direct or indirect sponsorship or approval”. It is precisely this matter that is at the heart of the deceit in the practice of surreptitious advertising.
Article 7 deals with misleading omissions, the other perspective from which we can understand surreptitious advertising. This article establishes that the omission or concealment of information necessary to enable the consumer to take an informed decision regarding his economic behaviour is considered unfair. Once again, the practice under analysis in this study, fits in some way with this provision, since, in cases of hidden advertising on social networks, we find that communicators conceal certain information relevant to the users’ decision-making, who on numerous occasions decide without knowing the advertising nature that is hidden behind the content shared by the influencers.
Nonetheless, article 26 of the LCD appears to be the most suitable for cases of surreptitious advertising on social media. Concretely, the first paragraph of the aforementioned article states the following:
Article 26. Covert commercial practices.
The subsequent actions are regarded as unfair for being deceptive:
1. Those that include as information in the media or in information society services or social networks, communications to promote a good or service, with the entrepreneur or professional paying for such promotion, without it being clearly specified in the content, or through images and sounds clearly identifiable to the consumer or user, that it is advertising content.
As we can extract from the wording of article 26.1, any communication that pursues a commercial purpose, and is placed, among others, on social networks, without this advertising character being specified or identifiable, will be considered unfair on the grounds that it is deceptive to the consumer.
In conclusion, throughout this section, we can see how the different legal instruments provide mechanisms to prohibit the practice of misleading advertising in the world of social networks. As it has been previously pointed out, the explanation is organized starting with the LCGA, the most recent and specific regulation for the case, then going on to examine the LGP, and finally, as the most extensive and broadest
29
regulation, we end with referring to the LCD, which is, in the last instance, the one that would allow us, in the absence of the previous ones, to include the misleading practice in question in the list of acts prohibited as misleading. Each of these norms works to safeguard the principle of authenticity, which serves as a seal of approval for the observance of consumer rights. As a result, the common goal of the articles under analysis is to forbid any behaviour that misleads the user by preventing him from being aware of the commercial or advertising nature lurking behind the communications of the communicator, in this case, the influencers.49
All these efforts to curb illegal practices stem from their increase in recent years on social networks. The main reason lies in the fact that social media manages to camouflage advertising very well, and it appears to be difficult to differentiate sporadic content from commercial content. Consequently, a requirement is established for those cases where the advertising character is not identifiable, which consists of signposting it.
This measure pretends to avoid confusion and ensures that the content respects the principle of authenticity. Besides, and although this may give the impression that the issue has been resolved, hidden advertising is currently a trouble on social networks.
3. Surreptitious advertising on social media
In line with the previous paragraphs, it must be pointed out that the debates regarding covert marketing actions on social networks have emerged more recently and are currently booming, along with the success of the platforms. The earliest controversies that came to light used content from websites and blogs without indicating that there was a financial connection between the blogger, who provided engaging content, and the advertiser, who promoted covertly. Subsequently, as social networks evolved, the propagation of these practices became common to find among YouTubers, Instagrammers, and other kinds of influencers.
49SIXTO-GARCÍA, J., & ÁLVAREZ-VÁZQUEZ, A. (2020). “Influencers en Instagram y publicidad engañosa: la necesidad de regular y autorregular”. Estudios sobre el mensaje periodístico, núm. 26(4), págs.
1611-1622.
30
As a consequence, the expansion of surreptitious online advertising was denounced by the European Parliament in 201050 which highlighted the spread of comments on social media platforms, blogs, and other forums that are rarely different in content from basic opinions, leading to covert advertising on the internet. It also remarked the possibility that in this instance, customers may make poor selections since they believe that the data they are relying on derives from a reliable source. In light of this European regulation, changes have been made to national legislation to force a more effective control of sponsored comments, since these practices imply a lack of honesty on the part of the influencer towards his followers and, in turn, an abuse of the whistleblower who hides the advertising practice.51
Nowadays, there is a wide variety of fields in which influencers are involved in generating covert advertising, from cosmetics, food, or fashion to some as surprising as the world of finance. Indeed, the CNMV warned on October 24th about the detection of numerous influencers who, under the false guise of financial advisors are disseminating investment recommendations to social network users. In the context of regulation and supervision of consumer influencers and unfair competition, the Commission warned of the imminent review of the financial suggestions issued by these profiles, which will have to offer an explanation to avoid the injunction. This case is yet another example of the recent materialization of the activity of influencers and the efforts of public authorities to regulate and supervise their activities, together with that of the employers who contract this form of advertising in those cases in which consumers and their assets may be at risk.52
In conclusion, it has been shown that illegal advertising may be found in an increasing number of places and in a variety of forms, which nowadays include sensitive industries such as the world of investing. In order to fight against this phenomenon, the independent self-regulatory body of the advertising industry in Spain, called AUTOCONTROL, was created in 1995.
50 Efectos de la publicidad en el comportamiento de los consumidores Resolución del Parlamento Europeo, de 15 de diciembre de 2010, sobre los efectos de la publicidad en el comportamiento de los consumidores (2010/2052(INI)) https://eur-lex.europa.eu/legal-content/ES/ALL/?uri=CELEX%3A52010IP0484
51 NIETO, B. G. “El influencer: herramienta clave en el contexto digital de la publicidad engañosa”. Methaodos, revista de ciencias sociales, núm. 6(1), 2018, págs. 149-156.
52 https://www.cnmv.es/portal/verDoc.axd?t=%7Bd6e36d88-f319-4671-98ca-fa8f1cecc112%7D
