Victory in case concerning Influencer Marketing

On 31 January 2018 the Patent and Market Court ruled that the advertising network Tourn has no responsibility for unfair marketing on social media channels belonging to a certain influencer. The judgment is of importance to those working within marketing on social media.

The judgment was delivered following a case brought by the Consumer Ombudsman (‘KO’) regarding unfair marketing on social media. KO decided to direct claims against both the company belonging to the influencer in question and Tourn that, amongst other things, conveyed the relevant marketing inquiry.

The questions raised were whether it was sufficiently clear that the posts were paid-for endorsements and for whom and if so, whether the company belonging to the influencer and/or Tourn could be held responsible for such advertisements.

The court accepted that the expressions ‘sponsored post’ and ‘collaboration’ (sw. ‘samarbete’) is sufficiently indicative of the posts in question being advertisement. The average consumer would understand that a post carrying those words is an advertisement. Crucially, such expressions must either be given a particularly clear design or be placed in a prominent position. Two posts were rejected because it was not sufficiently intelligible whether they were advertisements or not and for whom.

The advertiser – which KO chose not to target in the present case – carries the main responsibility for the marketing. The company held by the influencer was considered to have contributed to the marketing. However, there were no reasons to hold Tourn liable on a contributory basis. This was because Tourn had not exercised influence over the final form of the advertisement and had not participated in the final design of the advertisement.

The claims against Tourn were rejected in its entirety. KO will compensate Tourn for the litigation costs.

Sandart & Partners Advokatbyrå represented Tourn.

Karin Cederlund, +46 702 706 780, and
Sara Yng, +46 730 225 798,