SLK deals with first complaints on the subject of influencer marketing

Not sexist due to the factual connection to the advertised service, but still does not belong in the public space: The SLK approves the complaint against the advertisement of a sauna club operator (Photo: Screenshot Tele Bärn).

The Third Chamber of the SLK had to adjudicate on an impressive 19 appeals at its meeting on June 19, 2019. In addition to the three cases on the subject of influencer marketing, which had already made waves in advance, the three elected chamber members and the 13 advising experts had other interesting questions to answer. For example, whether the stop-advertising sticker also applies if the advertising is sent as an insert in an order from a mail-order company.

Of the 19 appeals it dealt with, the Third Board upheld six, dismissed eight and decided one appeal in part. In addition, one appeal was not taken into consideration and three were not substantively examined because the respondents had submitted. This means that they had already given credible assurances before the Board meeting that they would no longer use the advertising in question.

Influencer marketing under increased media scrutiny

Of a total of five complaints filed by a consumer organization against well-known Swiss celebrities for allegedly violating the obligation to separate content and advertising in their Instagram accounts, the Third Chamber was able to judge three in its June session. Of these, it approved one, rejected one and, in the third case, accepted that the sportswoman concerned had submitted.

• Approved: The complaint that was upheld concerned an athlete who advertised the clothing line of a sports equipment supplier on his account, including the statement "what to wear". Since this outfitter is also one of the athlete's main sponsors, his justification that he had made the post purely out of personal interest and that it was not a commercial communication did not seem comprehensible in any way.
• Rejected: This case involved a post by a TV presenter and musician in which she thanked the crew with whom she had filmed her new music video for their collaboration. At the end of the list of 15 corresponding hashtags, she linked a bar, a shopping mall and a fashion label, which was interpreted by the complainant as advertising. The SLK disagreed, as the three hashtags in question were not specifically singled out and did not make any promotional statements; moreover, when producing such a video, it is customary to thank those involved.  
• Subjected: In the third case, the athlete submitted to the complaint before it was dealt with by the SLK. This means that she credibly assured that she would comply with the separation requirement in the future and would mark her posts accordingly. For this reason, the Third Board did not substantively assess the appeal and did not comment on the athlete's suggestions as to how she would label advertising in the future. 

Seximus: The factual context is central

The appeal against the advertising of a sauna club was upheld by the SLK, although the required factual connection between the advertised service and the type of advertising was given. The Third Board did not find any fault with the presentation. However, the claim "Easter? Lick eggs! When shaved...". Such detailed descriptions of erotic services are not appropriate in the public sphere. In contrast, the same complaint was rejected which was directed against the media agency responsible for placing the advertisement on this billboard. According to Art. 8 Par. 2 of the SLK's Rules of Procedure, a complaint must always be directed against the advertising company.

The complaint against a paid post on the website of a newspaper was also rejected. The services of an erotic dating agency were advertised. Within the framework of the constitutionally guaranteed economic freedom under Article 27 of the Federal Constitution, it is not unlawful to offer and advertise erotic services as long as they do not violate Principle No. B.8 "Sex-discriminatory commercial communication". In the view of the Third Chamber, the post in question did not do so, all the more so as there was a factual connection between the form and the advertised offer.

Other cases in the overview

• The limits of the stop advertising sticker: The complaint of a private person was directed against an online mail-order company that had sent unaddressed advertising along with the ordered goods. In this case, the stop-advertising sticker is not effective. According to Art. 27 of the Federal Constitution and Art. 19 of the Code of Obligations, a company is free to decide how to structure its offer. The appeal was dismissed.
• Test reports must be independent: An online platform for financial services published a test report on five providers of money exchange services. The complainant, a direct competitor, complained that the platform did not make it clear that the author was one of its own employees. SLK's guidelines set high standards for tests and require, among other things, that the tester be neutral. This means that there must be no cooperation between the tester and the tested. The complaint was upheld.
• Complete business details only in business transactions: In one complaint, it was objected, among other things, that the respondent had not published its address in full in a publicity report, as required by the Commercial Register. In doing so, the complainant did not take into account that, according to Principle No. B.10, a company must only adopt the entry in the Commercial Register unchanged in business dealings. A public report is not a business transaction within the meaning of Art. 954a para. 1 of the Code of Obligations. The appeal was dismissed.