Flogs (or fake blogs) are a type of business that is very common especially in the fashion sector where some bloggers have become real stars, but their practice might lead to potential legal issues which both fashion companies and bloggers cannot ignore.
It is also called sometimes “opinion advertising” and it is the practice of giving an opinion or – especially in the case of fashion blogs – publishing pictures that are meant to drive readers to like a specific brand. Bloggers are very well respected in the fashion industry and in some cases are able to determine the success or failure of a specific product or trend. But what legal concerns can derive from this activity?
This practice is absolutely fine if the pictures and opinions express the true point of view and taste of the blogger, but if they result from an advertising, sponsorship or any other type of agreement between the blogger and the brand or contribution from the fashion company to the blogger (or any person connected to him) and the advertising purpose of the blog post is not clearly recognisable by the readers, the risk is that the practice is challenged as misleading advertising or better unfair commercial practice. Indeed, readers might be deemed to have been deceived in their preferences by the articles on the blog which was not fully transparent as its advertising purpose. Transparency is the main principle behind regulations on misleading advertising and unfair commercial practices that provide in Italy fines up to € 5,000,000. And it is also reflected in advertising self-regulatory regulations which do not provide fines but are much faster and effective of legal measures in some cases since a decision can be issued in a few days.
Also, in the case of videos published on blogs showing branded products, the issue is whether this might fall under product placement regulations and therefore require to comply with the level of disclosure prescribed by applicable laws.
Indeed, the question is whether bloggers shall expressly disclose in a clear visible manner the basis on which a blog post has been published in order to fully acknowledge readers on the fact that their view is not a fully independent opinion. In this respect, it also relevant to understand whether such type of disclaimer shall be placed in the Ts&Cs or shall be more visibile on the site. However, it may be also argued that readers might assume or easily guess about the “contribution” agreements behind a blog post and therefore no need of further transparency is required. For this purpose, an interesting point is also the qualification of the agreement between bloggers and fashion companies that from is currently very unregulated.