Advertising

All of them. The advertiser, the advertising agency and the media outlet can be held jointly liable for an unlawful advertisement, and social media influencers are responsible for their own posts. In practice, however, the heaviest sanctions usually fall on the advertiser. "The agency checked it" does not remove the advertiser's liability.

It must be clear, at first glance to the viewer, that the post is an advertisement, using the tags and wording set out in the Ministry of Trade guidelines. Gifting a product or providing a discount code also counts as a commercial relationship. Because both the influencer and the advertiser are responsible for the accuracy of the claims in the content, approval processes and the allocation of liability should be written clearly into the collaboration agreement.

Comparative advertising is permitted under certain conditions. The products compared must meet the same need, the comparison must be based on objective, measurable and verifiable features, and the competitor must not be denigrated. Every claim used in the advertisement must be supportable with documents that can be produced once an investigation begins.

First, watch the deadline: the time allowed for a defence is short, and missing it means losing the chance to defend. The defence should present, systematically, the documents, test reports and comparison data supporting the claims. Whether the advertisement should stay live should also be assessed separately, because in addition to fines the Board can order suspension and correction.

Yes. Decisions of the Advertising Board can be challenged by an action for annulment before the administrative court; the general rule is sixty days from notification of the decision. Appeals are possible after the first-instance decision. Because the outcome of the case often depends on what was submitted during the investigation, the defence should be prepared from day one with possible litigation in mind.