In order for a post on social media to be considered marketing, there must, among other things, be a commercial purpose for the post, taking the above definition into account. Circumstances that indicate such a commercial purpose can, according to the advertising ombudsman’s practice, be that there is an agreement between the company whose products the post refers to and the person who publishes the post. Another such circumstance could be that the person who published the post has a commercial relationship with the company to which the post refers, which could mean that the post’s objectivity or real motive could be called into question.
The existence of any of these circumstances can therefore mean that a post on social media meets the requirement to have a commercial purpose and that the post should therefore be considered marketing.
If a post on social media meets the requirements to be classified as marketing, the consequence is that the post is subject to the requirements set by applicable marketing legislation. Of particular relevance to this article is the requirement for advertising identification, which forms part of the ban on misleading marketing. Admittedly, the requirement for advertising identification does not include a general rule on how posts on social media must be marked or identified. The requirement can thus be met in many different ways, provided that it is clear to an average consumer that the post in question is marketing.
It is not easy to draw a line between marketing and freedom of expression on social media. Drawing the line is especially complicated when an employee publishes posts on social media that in some way concern his employer. In these cases, no special compensation is usually paid as a result of the post’s publication. It has therefore been questioned, especially by the influencers covered by the advertising ombudsman’s decision, whether such posts really have the commercial character required to be considered marketing.
As an employee, you must reasonably be able to publish certain types of posts on social media about your employer without such a post being classified as marketing. For example, you must be able to publish what it is like to work for your employer or otherwise reflect the everyday life at your workplace in a positive way. There is, however, a limit where such posts turn into commercial purposes and otherwise speak to be considered as marketing.
If an employee publishes a post on social media that invites the purchase of or otherwise reviews the products or services provided by their employer, there is a risk that such posts are considered to have a commercial purpose and should therefore be considered marketing. In such cases, the post may mislead the reader about the commercial purpose of the post.