You’ve probably heard about Ecija Ivušić Belošević and the latest case of penalizing influencer advertising on social media. The influencer has been found guilty (not yet final) and ordered to pay a fine of 665 euros plus 100 euros in court costs due to the (prohibited) promotion of electronic cigarettes on her Instagram profile. While she isn’t the only one penalized in this way, both in Croatia and globally, there’s still a strong sense that the influencer advertising space remains a “Wild West” with ineffective regulations.
Why was she fined?
Ecija was among a group of influencers taken to Egypt by the tobacco product company WIIP. They posted photos from the trip with the hashtag #wiiptrip. It’s assumed that someone reported her to the State Inspectorate because, although no tobacco products were shown in the photos, the context was easy to understand.
She wasn’t fined for unauthorized or covert advertising on social media because her posts weren’t marked as sponsored content, but rather for indirectly advertising tobacco products, which is prohibited by the Law on the Restriction of Tobacco and Related Products. Since this includes logo display, she was found guilty based on photos posted on her Instagram profile and the fact that she had a contract with an e-cigarette manufacturer.
This is just one example of how the Electronic Media Act is being exploited or subtly circumvented, as influencers aren’t explicitly listed as “media.”
Influencers aren’t media?
Many influencers have hundreds of thousands of followers on social media, sponsored posts and often even registered businesses with employees. However, some still claim that their profiles are private, only sharing moments from their daily lives.
It’s clear as day that influencers, among other things, are funded by promoting products and services on their profiles. Today, they are an integral part of digital advertising, bringing direct benefits to clients and advertisers — positively influencing consumer behavior with subtle or direct brand endorsement, enhancing brand reputation and expanding the visibility of products or services.
On the other hand, when influencers are criticized for irresponsibly promoting tobacco products, gambling, energy drinks, loans, or even weapons to their audiences, they argue they aren’t media and aren’t subject to media advertising laws.
While influencer marketing should be marked and separated as paid content, this isn’t a common practice in Croatia. Influencers often covertly promote brands, making it difficult to discern if the content is promotional. This raises the question: does this form of communication mislead consumers, influencing them unethically?
Labeling promotional content
Although most influencers consciously or unconsciously ignore Croatian advertising laws, which define advertising and how it should be labeled, they shouldn’t ignore the platform rules on Instagram, TikTok, or YouTube, which insist on clear sponsorship labeling.
So, why don’t they label paid content? For instance, at a recent digital marketing panel, one influencer openly admitted that she doesn’t label posts as sponsored because it reduces her audience reach and she needs to present good analytics to her client.
Some influencers, however, aim to maintain a good reputation and relationship with their audience, who believe that all those products and services are genuinely used and positively experienced by the influencer. Influencers know that if they emphasize their positive review as part of a paid sponsorship, it shifts the perspective and influences the decision to purchase a product.
Why (doesn’t) regulation exist?
In Croatia, there is legislation for media, electronic media, and advertising; however, there isn’t specific regulation clearly covering influencers on social media. We know how advertising works on other digital media — there’s no product placement without a clear label indicating sponsored content, except in regulated circumstances under the Electronic Media Act.
For example, the Media Act mandates that all paid content (ads) must be separated, labeled and shouldn’t create consumer confusion. In other words, any communication (regardless of the media) that a consumer cannot immediately recognize as paid rather than editorial media content is prohibited by law.
Of course, we know that covert advertising can be seen in various TV shows when a product suddenly “appears” on screen, but not to this extent and without regulatory oversight. Here’s how covert advertising is defined under the Media Act and the Electronic Media Act:
Influencers in the gray area of advertising
It’s evident that no one in Croatia has seriously tackled influencer advertising regulation. However, ethical codes and laws exist; they’re just intentionally ignored, seeking a “gray” advertising zone. For example, instead of labeling a post as paid, influencers might add a hashtag or brand tag and pretend that this alone informs the audience that it is a sponsorship.
We won’t delve into issues with questionable brands and products presented to the audience, nor their moral responsibility and role toward society. Still, their content “influences” followers’ thinking, and when product promotion isn’t clearly communicated as promotion, it leads to covert advertising and audience deception.
