The initiation of the proceedings
At the beginning of 2020, following the recommendation of the National Consumers’ Union, two separate investigation procedures were initiated (PS11603 concerning LG and PS11604 concerning Wind), both concerning a potential case of hidden advertising due to the presence of the WindTre and LG brands within the video clip of the song “Senza Pensieri” by Fabio Rovazzi, made available from August 1, 2019 on the singer’s “YouTube” channel and found on the Internet and on television networks.
In particular, the reporter claimed that the methods used to highlight the inclusion of trademarks for promotional purposes may be inadequate to make clear the existence of a contract relationship with the trademarks shown in the video, in order to ensure the consumer an adequate critical spirit, with possible violation under Articles 20 c. 2, 22 c. 2 and 23 c. 1 lett. m) of the Consumer Code. The warnings used “Sponsor Adv WindTre&LG”, were in fact external to the video and any consultation, visible only by clicking on “Show Other”, placed in the text below the video, along with other information. The Authority also ascertained that the above wording would be included in the description of the YouTube video only on November 6, 2019, a few months after publication.
During the preliminary activity, the artist reported that a modification of the video aimed at inserting new writings and warnings within it would require the upload of a new version of the video on the “YouTube” channel, with the deletion of the previous version of the video, resulting in the loss of all counted views and economic damage to the professional.

The commitments of the professionals involved
Fabio Rovazzi and the other professionals involved (including Universal, the production companies Bmovie Italia and 9.99 Films and the marketing agency Evolution People) have presented to AGCM specific commitments to eliminate the alleged violations in relation to the video clip under investigation and avoid future similar situations.
In particular, Fabio Rovazzi has committed himself to use the tool made available by YouTube called “Positions and approvals of paid products”, which does not involve reloading the video clip on the platform but makes the words “include paid promotions” appear in overlay for 16 seconds at the beginning of the video. This change is now already visible on the video clip of the song.
Again, in the event that the video was requested by television broadcasters, Fabio Rovazzi committed himself to deliver the work containing final credits, with specific warnings of the presence of product placement and explicit mention of commercial partners. Moreover, the singer will also deliver the video clip with the above mentioned warnings to Universal Music Italia S.r.l., the licensee of the rights of the above mentioned work.
In relation to future video clips, Fabio Rovazzi has also committed to include in the end credits of the video clip specific warnings regarding the presence of product placement, with explicit indication of the brands and brands present.
Finally, with regard to future communications by social media, the artist committed himself to include hashtags such as #advertising, #sponsored, #adversiting, #adv.
The LG operator, on the other hand, committed itself to sending a communication to the top management of the company to demand compliance with the regulations and avoid, in relations with influencers, occult advertising, adopting a self-regulatory code relating to product placement, and amending its contracts to strengthen the obligations of influencers with regard to compliance with the rules of the code of conduct.
The operator WindTre committed, for the new contracts that will be signed and that will have as their object artistic performances involving internet platforms where one of the brands of WindTre is present, to ask the other contractual party to insert a negotiating clause providing for the inclusion of a disclaimer to inform the user of the inclusion of commercial messages. This warning will be inserted in the position chosen by the artist, in sliding or static mode, at the beginning of the video before viewing or at the end of the video, with mention of the sponsor. The counterparty must provide WindTre with appropriate periodic reports on the initiatives undertaken.
Similar commitments have been made by the other operators involved.

The provisions of the AGCM
The AGCM has deemed the commitments presented suitable to eliminate the possible profiles of the illegitimacy of the disputed commercial practice, meeting the requirements of Article 27, paragraph 7, of the Consumer Code.
In particular, the Authority stated that the commitments – which can be traced back to parties active in various ways throughout the video clip production process – represent a common effort particularly effective in ensuring compliance with transparency rules.
The Authority has therefore closed the proceedings without determining any infringements, making the commitments made mandatory and pointing out that, in the event of non-compliance, a pecuniary administrative sanction ranging from 10,000.00 to 5,000,000.00 euros will be applied.

The rules of advertising
According to Directive 2006/114/CE concerning misleading and comparative advertising is “advertising”, any form of message which is broadcast in the exercise of a commercial, industrial, artisan or professional activity, with the aim of promoting the supply of goods or services, including real estate, rights and obligations”. The definition is rather wide and is suitable to include any form of communication, including those that use the Internet, such as links, banners, popups, showcases, email marketing, as well as social and/or blog posts and even music videos, when these forms of communication are aimed at promoting consumption.
Articles 18 et seq. of Consumer Code, also applicable to online advertising, state that advertising is lawful if it is “clear, truthful and correct”. In particular, it is defined as “misleading” the commercial message that misleads the consumer by prejudicing his economic behaviour and causing injury to competitors, including in this concept also the reticence” and “suggestiveness” of the message. The induction in error may concern the price, the availability on the market of the product, its characteristics, the risks connected to its use.
The Code also indicates commercial practices that must, in any case, be considered misleading (such as, for example, displaying a trustworthy mark, a quality mark or an equivalent mark, without having obtained the necessary authorisation, and similar behaviour) or aggressive (such as, for example, explicitly informing the consumer that, if he or she does not purchase the product or service, the work or subsistence of the professional will be endangered, and so on).
Another important regulatory measure is Legislative Decree 145/2007 on misleading advertising, Article 5 of which clarifies how advertising must always be recognisable as such, and how all forms of subliminal advertising are prohibited. Among other things, hidden product placement is prohibited, i.e. the highlighting of a product during a “storytelling” so that the presence of the good appears to be the result of the author’s natural choice, while in reality, it is the object of an economic agreement between the influencer and the company that produces the product. Special attention should be paid to children and adolescents, since according to art. 7 of the decree, advertising that may abuse the natural credulity or lack of experience of this particular segment of the public, which is very numerous in the world of social media and blogs, is considered misleading.
In the event of violation of law provisions that prohibit misleading advertising, the involvement of the civil judge who may prohibit the conduct is provided for even as a precautionary and urgent measure, as well as order compensation for any damage caused.
In this industry, the role played by the Competition and Market Authority (AGCM) is also very important, which, according to Article 8 of Legislative Decree No. 145/2007, can in turn issue an injunction against the continuation and temporary suspension of misleading advertising.
The AGCM may also apply a fine ranging from € 5,000.00 to € 500,000.00, taking into account the seriousness and duration of the violation.
In addition to the provisions of the law, in the advertising industry there is a code of self-discipline, managed by the “Istituto dell’Autodisciplina Pubblicitaria” (IAP): it is a “private” code of conduct, in the sense of a contract between the parties (mainly the advertising media) who enter into it.
The IAP launched in June 2016 (and integrated in 2017) the so-called “Digital Chart”, a document that carries out a survey of the most widespread forms of commercial communication on the web and in the digital world and sets the criteria for the recognition of commercial communication. With reference to advertising by means of celebrities, influencers, bloggers and/or vloggers, carried out both by post and live video, the Digital Chart clarifies that, in order for the commercial message to be clearly recognizable, these subjects must include in a clearly distinguishable way in the initial part of the post the words: “Pubblicità /Advertising”, o “Promosso da (brand)/Promoted by (brand)” o “Sponsorizzato da (brand)/Sponsored by (brand)” o “in collaborazione con (brand)”o “in partnership with (brand)”; e/o entro i primi tre hashtag (#) una delle seguenti diciture: “#Pubblicità/#Advertising”, “#Sponsorizzato da (brand)”/“#Sponsored by (brand)” o “#ad” unitamente a “#brand”.
Violation of the Digital Chart rules may result in the issue of a cease and desist commercial communication order by the Giurì.

Margherita Stucchi