The camouflaged power of brands: Youtubers and Influencers

In the current pandemic context, when you cannot go out to do outdoor activities for fear of contagion and you only have to be distracted by computers and televisions, I discovered a very popular trend in the Asian continent: mukbang, which are basically videos of y[1] o influencers[2] eating large amounts of food while interacting with their followers[3], a kind of show that has gained a lot of popularity in South Korea and that over the years has generated a lot of followers and in turn has catapulted many young people to become influencers and get pretty famous[4].

This type of entertainment has become so popular that it is logical that it has become a business for many y e influencers that do it, since many digital platforms monetize videos depending on the number of views they have, being then that the more popular a youtuber o influencer and their contents, the more income they will have[5].

Up to this point, this new type of entertainment seemed quite curious to me, to the extent that personally I would not sit and watch someone eat, and it did not attract my attention until I noticed a recent news about the influencers y y of mukbang. They were being accused of covert advertising, for which they had to apologize and admit that they had been paid to promote various restaurants or dishes, and that they had not been bought by themselves as they said in their publications[6].

Apparently it was an open secret that the food eaten in many videos was paid advertising. In fact, the followers of these influencers They had previously been accusing them of covert advertising since, and indeed I verified it when I saw some of these videos, the influencers they expressly indicated that they had bought the product and highlighted its qualities, which did not match reality.

All this was finally corroborated in a live broadcast made by one of the y most recognized in South Korea, who being intoxicated - his channel specializes precisely in consuming large amounts of alcoholic beverages-, admitted it and mentioned several involved in the field who also did[7]. On this, the influencers y y of mukbang They had no more qualms than admitting and apologizing, since many of them pointed out, even in a repetitive way, in their videos, that the products had been purchased by themselves and not paid for advertising.

This situation had two simultaneous reactions: the change of thought on the part of the followers of the influencers of mukbang, who practically “they canceled " these virtual celebrities, stopping them from following on social networks or issuing derogatory comments, while the credibility of their publications and suggestions was "genuine", insofar as they indicated that they had bought such a product because they found it delicious, or had bought in a specific place because it was more appealing than in other restaurants, which had a great impact on the followers, since there was no feeling that they were advertising something and what the influencer It was the result of a consideration, but because he genuinely believed it and transmitted it to his followers.

At this point, I must indicate that as a consumer I would also be disappointed since, although it is common for consumers to influencers publish publications about products and their "favorite" brands, a fact that can cause doubt as to whether it is advertising or not, the truth is that hearing that they mention in their transmissions that they were their acquisitions does not give rise to doubts that there is advertising, but which is a personal experience that they are sharing, which makes the suggestions for buying products or services more genuine and therefore more credible and ends up being better received by the followers, who are also consumers, finally.

On the other hand, I was surprised by the response of the Korean authority, the Korea Fair Trade Commission[8], which published some guidelines on how advertising should be carried out by influencers in social networks, since they could not promote any product or service without revealing the commercial links with the companies, so they must be clear with the publications they make regarding the relationship they have with their sponsors.

At this point, from a legal perspective, we verify that the influencers of mukbang carried out covert advertising, which is understood as one in which the advertising message cannot be identified by consumers because there is a misleading element in the way the advertising is communicated. In this sense, consumers would be more vulnerable to the extent that they consider that the information comes from an objective source because they are not seeking persuasion to buy the product as advertisements normally do.[9].

Similarly, the European Parliament defined in Directive 2007/65 / EC disguised advertising as:

Concealed audiovisual commercial communication: the verbal or visual presentation of the goods, services, name, brand or activities of a producer of goods or a service provider in programs in which such presentation has, intentionally on the part of the communication service provider , an advertising purpose and may mislead the public as to the nature of such presentation. A presentation will be considered intentional, in particular, if it is made in exchange for remuneration or similar consideration.[10].  

In short, disguised advertising seeks to present itself to consumers as a message of an objective, informative or any other nature, but not advertising, that is, it will not manifestly highlight the qualities of a product or service in order to influence the consumer in order to acquire it, but rather does it in a subtle way so that it is not appreciated that it is truly an advertisement[11]

It should be remembered that advertising is one of the mechanisms that companies have to compete, since through them they make their services and products known, and seek to persuade the consumer to acquire them[12]. In this sense, advertising is not intended to inform or educate the recipient, but through advertisements it seeks that the greatest amount of services and products are acquired by consumers to obtain an economic benefit.[13]

Now, Covert advertising is considered illegal because the law ensures that consumers receive advertising by adopting all the psychological measures necessary to receive it. That is, the recipients of advertising do not expect that the advertisements are completely objective and impartial, but they understand that the companies seek that their products or services are acquired, for which the qualities of the same will be enhanced, which to ultimately it will be received skeptically by consumers[14].

Similarly, Covert advertising harms the legitimate interest of consumers to know the nature of the messages received through the various communication media, which makes the way in which the advertisements are presented but not the content is misleading[15].

In our country, this type of advertising is regulated in article 16 of Legislative Decree 1044 - Law for the Repression of Unfair Competition, which provides that advertising practices that can generate confusion in the consumer about the advertising nature of the same. Is then that covert advertising violates the principle of authenticity, -which is included in the aforementioned article-, since it ignores the advertising nature that it must contain and is camouflaged under other modes of communication that end up affecting the consumption choices made by consumers[16].

In short, the principle of authenticity prohibits advertisements that may cause confusion in the consumer about the advertising nature of the same, for which, they must mention it if necessary in case it is liable to mislead the consumer.[17].

From the aforementioned, and when verifying that the case of the mukbang fits into disguised advertising, we corroborate that the Korean authority has acted correctly so that consumers can know the nature of the publications made by the influencers, and know that in the present case the transmissions of many influencers they were advertising and not the recommendations they thought they made regarding food.

Let us remember that the phenomenon of influencers It is relatively recent, which is creating new forms of advertising that not all people understand. Therefore, the intervention of the authority favors consumers because they would no longer be deceived by the influencers by falsely believing that what they indicate in their transmissions is not advertising. Likewise, they will be dissuaded from carrying out the same acts to the extent that they are aware of the damage it may cause them.

Regarding this case, we verified that something similar happened in our country, the Advertising Guide was published for influencers[18], launched by our authority, the National Institute for the Defense of Competition and the Protection of Intellectual Property, INDECOPI.

By analyzing the aforementioned guide, we verify that the authority seeks to educate and guide about digital advertising, which is the result of new forms of advertising and the use of the internet. In this sense, it seeks to promote the importance of fair competition in digital environments, the scope of digital advertising, the applicable legislation, as well as the incidence of the figure of influencers in advertising, so it provides recommendations to avoid violating the already developed principle of authenticity, that is, not falling into disguised advertising.

It is clear that the Peruvian authority has been governed by predictability in order to make clear the guidelines that must be followed by influencers in order to avoid teaching them through sanction, and in this way trust is also generated with the authority.

Now, from what has been explained, we conclude that both authorities seek to inform the influencers on the scope of its publications, the advertising nature that involves them many times, as well as the effects they may have on consumers and the corresponding applicable legislation. In this sense, I consider that the Korean regulation has been necessary to the extent that the influencers They denied advertising and presented it as if they were real users of the product, which is why the new regulation is asking them to be explicit about the commercial relationships they have with brands and not to issue “thank you” messages to the brand or "informative content", which camouflages the advertising nature of the advertisements.

In contrast, although I rescue that the Peruvian guide seeks to ensure consumers, so that they have no doubt that the publications made by the influencers contain contracted advertising. I consider that asking them to indicate that it is advertising through certain hashtags, it is very strict, since they only allow them to use hashtags such as #advertising or #contractedadvertising, being that through abbreviations such as #publi, #advertisingname, #adv is also understood to be advertising what the influencer is divulging. Likewise, it would not be harmful to place the label at the end of the advertisement, since the analysis carried out by the authority is of the entire advertisement.[19].

Having said all this, based on the Korean case, it might not be relevant that if the influencer o youtuber they really bought the products they ingested in the broadcast, the truth is that when they sought to monetize their broadcasts and the products they consumed to earn more money, they ended up losing the credibility of their audience and the essence of the broadcasts of the mukbang. As well as, they ended up doing covert advertising, which caused the new regulation. In the same way, our country has sought to guide the influencers about their work in digital media, so that they are aware of the incidents they may cause to consumers.

Finally, as consumers we must remain alert to the information provided by our influencers favorites. As we have seen, both in South Korea and in Peru covert advertising is sanctioned. We are aware that the Peruvian authority, in this type of case, adequately punishes offenders.


*The opinions expressed in this article are those of the author and do not necessarily reflect the views of the administrators of The Crypto Legal blog or the Lawgic Tec association.

References

[1] The following is understood by youtuber: being a youtuber is being a YouTube user to share content in audiovisual format, but this definition is actually incomplete because the economic end is not necessarily sought when uploading a video, although anyone can register in the payment systems for Benefit from the advertising generated from your shared content.

For more information: https://blogs.imf-formacion.com/blog/tecnologia/que-es-un-youtuber-y-como-funciona-201902/ Consultation made on April 23, 2021.

[2] The Advertising Guide for influencers published by Indecopi defines this term as follows: a person who has a certain credibility on a given topic and who, given his ability to convince or reach his followers, without necessarily taking into account their number, can become a determining component in the decisions that consumers make in the market.

For more information: https://www.indecopi.gob.pe/documents/1902049/3749438/Gu%C3%ADa+de+Publicidad+para+Influencers+VF+13.11.19.pdf/66da0113-9071-36a8-da91-a81d123c6a42  Consultation made on April 23, 2021.

[3] The Advertising Guide for influencers published by Indecopi defines this term as follows: Users of digital environments who have decided to "follow" the activity carried out by another user.

[4] For more information: https://www.bbc.com/mundo/noticias-48498033 Consultation made on April 20, 2021.

[5] For more information: https://www.merca20.com/influencers-seran-multados-en-corea-del-sur-si-incurren-e-actos-de-publicidad-encubierta/

Consultation made on April 20, 2021.

[6] For more information: https://ismorbo.com/corea-del-sur-multara-a-los-influencers-que-hagan-publicidad-encubierta/

Consultation made on April 22, 2021.

[7]For more information about what is indicated by the youtuber: https://www.youtube.com/watch?v=FjLbVHqNxpI

Consultation made on April 24, 2021.

[8] For more information: http://www.ftc.go.kr/eng/index.do

[9] SOSA HUAPAYA, Alex. "Covert advertising and new advertising modalities". In Actualidad Mercantil Magazine, N ° 4, Lima - Peru, 2016, p. 252.

[10] For more information: https://eur-lex.europa.eu/legal-content/ES/TXT/?uri=celex%3A32007L0065

[11] FERNÁNDEZ-NOVOA, Carlos. "Covert Advertising". Studies in Advertising Law, University of Santiago de Compostela, 1989, p. 183.

[12] ARAMAYO, Abelardo. "Advertising rules. Comments - Jurisprudential Precedents ”. Indecopi, 2016, p. 219.

[13] LIP, Aurora. "Covert Advertising: The Information You Sell." Advertising Questions. Vol. I, No. 11, 2006, p. 52.

[14] SOSA HUAPAYA, Alex. Op. Cit... P. 253

[15] Idem.

[16] Idem.

[17] MEGIAS QUIROS, Juan José. "The principle of authenticity in commercial communication". Communication Magazine. Vol. 1. N ° 12, 2014, p. 66. 

[18] For more information: https://www.indecopi.gob.pe/documents/1902049/3749438/Gu%C3%ADa+de+Publicidad+para+Influencers+VF+13.11.19.pdf/66da0113-9071-36a8-da91-a81d123c6a42

[19] Article 21 of Legislative Decree 1044 - Law for the Repression of Unfair Competition indicates the following:

Article 21.- Interpretation of advertising. -

21.1.- Advertising is evaluated by the authority taking into account that it is an instrument to promote the recipient of your message, directly or indirectly, the contracting or consumption of goods or services.

21.2.- Said evaluation is carried out on the entire content of an advertisement, including words and numbers, spoken and written, visual, musical and sound effects, considering that the recipient of the advertisement performs a comprehensive and superficial analysis of each advertisement that it perceives. In the case of advertising campaigns, these are analyzed as a whole, considering the particularities of the advertisements that comprise them. (Own highlight).

 

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Andrea Norabuena
Lawyer from the Pontifical Catholic University of Peru with a Specialization in Consumer Protection from the same House of Studies. Member of the Lima Bar Association. He has experience in consumer protection, intellectual property and competition law. His career includes INDECOPI, law firms and companies. Currently, she is an independent consultant.

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