The Italian Antitrust dictates guidelines on the Relationship between Clients , Agencies and Infuencers.

On March 15, the Antitrust Authority concluded a misleading advertising procedure, involving for the first time 9 micro influencers who worked in the launch of the "Pan di Stelle" chocolate cream produced by Barilla.

For some time now, the Antitrust Authority has been dealing with various issues of hidden advertising published through new media, as the recent Alitalia / Alberta Ferretti case.

Also in the Pan di Stelle case, the Antitrust Authority has not imposed any sanctions against the parties involved, accepting the commitments that Barilla and the micro-influencers are willing to take on.

The Antitrust Authority has positively assessed the commitments made by the parties involved in the proceedings, which are beginning to emerge as real guidelines, both for the companies launching the marketing campaign and for the influencers promoting the products/services covered and for the agencies mediating the relationship between customers and influencers.

The guidelines that emerge from the Antitrust Authority's decision can be summarized as follows.

As for companies:

1. These should use a contractual standard in their dealings with influencers that contain penalty clauses (such as reduction of fees and/or penalties and/or suspension of payments) against influencers in case of breech;

2. Contracts between the client and the agencies should include clauses aiming at making the agencies responsible.

As for agencies, these must carefully monitor the work of the influencers and take prompt action, also at the customer's request, to ensure compliance with the Guidelines.

With regard to micro-influencers they should:

1. include, in posts containing the image or mention of products received from brands to which they have no obligation to carry out promotional activities, hashtags such as #suppliedbybrand or #brandgift or #fornitodabrand, or other similar wording;

2. include, in posts published as part of a collaborative relationship with the brand, hashtags such as #suppliedbybrand or #advertisingbrand or #advertisingbrand;

3. refrain from publishing the content authorized and selected by the commissioning brands, unless the contract expressly provides for it with the relevant constraints. This decision sets out guidelines that give greater certainty in contractual relations between companies and influencers.

Indirect and Subliminal Advertisements on Social Media.

The advertising market is undergoing a major change and indirect - subliminal advertisements promoted through online and social networks are becoming more and more common.

Indirect advertising is a clear and explicit message that appears on unusual spaces, but not mentioned as such. Subliminal advertising, instead, isn’t evident. This practice is banned by Italian law but only with respect to TV advertising and although film and television are a fertile ground for this kind of promotion, new challenges have emerged above all on social networks. Indeed, as the world wide web represents a new opportunity to express our thoughts and interests and tastes and a new way of learning and sharing information and content, companies have also begun to use them in an explicit or tacit manner.
On the one hand, we have real advertising spots and sponsorships, although not fully controlled: Facebook and Instagram, for example, check that ads don’t have an illegal content or prohibited by rules but they don’t control the accuracy of the information communicated, nor their congruity with the regulation, since there is no discipline code to be respected.

On the other hand we notice serious “product placement” proliferation within the most clicked profiles.

In this regard, the British Competition and Markets Authority stood up against disguised advertising, which is not recognizable in photos and videos posted on social media. Recently also the American Federal Trade Commission, for the first time addressed the issue, asking “web influencers” to emphasize that hidden  recognizable through hashtags or comments.

However, there are no specific rules governing indirect and subliminal and the terms of use of social media like Instagram, provide and restriction. The question arises as to whether consumers, who shall not be subject to untruthful and deceptive ads, have also the right to distinguish the advertising contents from a “lifestyle tips”.

Recently, the Italian National Consumer Union has questioned the Competition and Market Authority (AGCM) to ask for the legitimacy of indirect and subliminal advertising on social networks. The legal basis for this controversy is the article 22 of the Consumer Code which asserts that the commercial intent must be explicitly stated if it is not obvious from the context or if it is capable of misleading the consumer.

The AGCM should soon clarify the issue and provide adequate information both on the relationships between producer and influencer, and on the obligation to declare the advertising purpose of the posts.

Meanwhile, Instagram has launched a new tag, "Paid Partnership with", so that users can include it in their stories and post. Alternatively, many bloggers, including the most famous Chiara Ferragni, have started using some "claim-hashtags" such as #ad, #advertisement, or #advertising to highlight the commercial purpose of their photo, protecting the consumer.