On 29 April 2019 the so-called “Digital Chart” finally became part of the Italian Code of Marketing Communication Self-Regulation, moving from a mere guideline to binding rules, which will have to be followed by individuals and businesses that are subject, directly or indirectly, to the Italian advertising self-regulation system.
The need for digital marketing regulation
The “Digital Chart” was first released three years ago by the Italian Advertising Self-Regulation Authority (the “Istituto di Autodisciplina Pubblicitaria” – IAP), in order to meet the growing market demand to make online marketing communication distinguishable as such. One of the main aims that led to the release of the Digital Chart was the need to regulate marketing communications and endorsements made by influencers and celebrities on the internet and on social networks.
Although, over the years, it has become a point of reference, especially for influencer marketing, the Digital Chart has so far remained a bundle of recommendations and best practices. But in April 2019 the Digital Chart guidelines were converted into a proper regulation: the “Digital Chart Regulation on the recognisability of commercial communication distributed through the Internet” (in short the “Digital Chart Regulation”).
Reference to the newborn Digital Chart Regulation can be found in Article 7 of the Code of Marketing Communication. In the past this provision – which has always been aimed at preventing marketers from disguising the business purposes of commercial communications – only required that commercial communication was clearly recognisable and distinguishable from other content through the adoption of appropriate measures. Now, with the latest amendments of the Code, Article 7 specifies that “with regard to certain forms of commercial communication disseminated through the Internet, the main appropriate measures are indicated in the Digital Chart Regulations“.
The requirements of the Digital Chart Regulation
The Digital Chart Regulation, recalling the wording of the old guidelines, lists the requirements to be met – as well as the wording and hashtags to be used – to make each of the most widespread forms of digital commercial communication distinguishable, so as to comply with the Article 7 requirement of recognisability. This applies to, for example, endorsements by influencers and celebrities, videos, native advertising, in app advertising and advergames, editorial content, etc.
For instance, to mention one of the most important examples, as far as endorsements by influencers and celebrities are concerned the Digital Chart Regulation provides that one of the following words must be inserted in the initial part of a post, in a clearly distinguishable manner:
– “Pubblicità/Advertising” or “Promosso da … brand/Promoted by…brand” or “Sponsorizzato da…brand/Sponsored by…brand” or “in collaborazione con…brand/In partnership with…brand”;
and/or that the first three hashtags must contain one of the following terms:
– “#Pubblicità/#Advertising”, or “#Sponsorizzato da … brand/#Sponsored by … brand”, or “#ad” unitamente a “#brand”.
It is also interesting to note that the Digital Chart Regulation expressly clarifies that a company will not be liable under Article 7 if it is able to prove that it previously informed the influencer about the existence of these specific recognisability requirements. Companies should therefore make sure that their communications with influencers in relation to online marketing are recorded in writing.
The consequences of breaching the Code
The use of digital commercial communications that do not comply with the Digital Chart Regulation will therefore constitute a violation of Article 7 of the Code and may be contested by competitors and ex officio by the Self-Regulation Authority and, in the most serious cases, may even be subject to fines by the Italian Competition Authority.
Finally, it is also worth recalling the very first reaction to this issue by the IAP. On 13 May 2019, the President of the Review Board issued a desist order for violation of Article 7 of the Code against a famous Italian celebrity. In March, the celebrity published a post on her Instagram account aimed at promoting the products of a well-known brand, but the relevant commercial communications were not sufficiently explicit, although there was clearly a business relationship between the celebrity and the brand. The desist order refers to all those measures to be taken in connection to online endorsement listed in the “regulation issued on 29 April and expressly referred to in the code“.
Are these perhaps the first steps towards a national regulation on influencer marketing?