Last week the Consumer Ombudsman notified a company that works in the field of cosmetic surgery on its marketing on Instagram because the company’s “silicone breasts”-account had liked pictures uploaded by minors and started following the Instagram accounts of minors (KKV/228/14.08.01.05/2017). In his decision the Consumer Ombudsman highlighted that marketing done on the web is reviewed the same way, irrespective of if the marketing is done on the company’s own website, via online banners or social media channels. What kind of restrictions does the (Finnish) law on consumer Protection set on marketing on Instagram aimed at minors?
Building a good brand often requires the use of image marketing. On Instagram companies’ image marketing is built strongly around the companies’ own accounts, but companies also like content produced by other users and follow the accounts of other users. Image marketing on Instagram is not forbidden, but it is wise to remember that the same laws on Consumer Protection apply on this kind of marketing as on other forms of marketing, for example improper marketing and marketing against good practice. A good rule of thumb is that Finnish law always applies, if marketing is directed at Finland. Therefore, it is not enough that a foreign based company follows the national legislation of its country of origin when doing marketing in Finland.
The Consumer Ombudsman viewed the image marketing of a company working in the field of cosmetic surgery to be against the (Finnish) law on Consumer Protection, because the company had indirectly marketed cosmetic surgical procedures to minors by liking their posts on Instagram and by following their accounts. In its answer the company justified its actions by stating, that the Instagram account in question was not owned or administered by the company but was the account of a foreign owner operating outside of Finland. The view of the Consumer Ombudsman is, however, that by liking content posted by other users or by following Instagram accounts the owner of the company marketed on Instagram on behalf of the company, and that the company therefore answers for the marketing.
The lower age limit for using Instagram is 13 years. Based on the profile information of an Instagram account it is, however, impossible to determine whether the user is of legal age or not. Companies ought to carefully consider to whom they direct their targeted marketing on Instagram and who’s content they like, and which accounts they follow.
Marketing targeting minors is not categorically forbidden, and it isn’t illegal (except considering for example tobacco products, alcohol, tattoos or cosmetic surgery). When the marketing targets minors the protected status of minors as targets of marketing and producers of content, as well as restrictions on the content of marketing, based on these facts, must be considered. The good will and accordance with good practice is reviewed more strictly the younger the children in question are.
According to 2:2 in the Finnish law on Consumer Protection, marketing is in breach of good practice, if it is in clear violation with the commonly accepted values in society. Marketing targeting minors or marketing that reaches minors is in breach of good practice especially, 1) if it takes advantage of the impunity or gullibility of minors, 2) if it is likely to negatively affect the balanced development of minors, 3) if its purpose is to bypass the possibility for parents to fully raise their children. When reviewing the breach of good practice, the development and age of the children the marketing reaches, as well as other circumstances, must be considered. According to the government bill 32/2008 the particular circumstances of every individual case, including the medium used and the way in which the marketing is carried out, is taken into account when reviewing the breach of good practice.
The critical thinking and media literacy of minors is often still developing, which is why minors are more susceptible to the devices and effects of marketing than adults are. A responsible marketer should therefore respect the gullibility and impunity of minors.
Most commonly the right for parents to raise their children and good practice is breached for example when marketing targeting children or reaching children (see more here ):
It is good to remember that marketing including a direct encouragement to children to buy a consumer product or the persuasion of parents or other adults into buying the marketed product to children is viewed as the type of forbidden aggressive actions defined in the (Finnish) law on Consumer Protection.
If you are interested in the subject, I recommend the seminar ”Markkinoinnin tunnistettavuus – tunne pelisäännöt” arranged by Alma Talent where I will be speaking.