Publication date: April 29, 2025
Surreptitious advertising is a form of hidden promotion in which the advertising message is incorporated into editorial content, programs or social media posts without any clear indication that they are commercial in nature. When a famous person publishes a photo promoting a product or service for which they receive remuneration, but does not inform about the commercial nature of this content, it is covert advertising. Such practice can mislead the consumer, as they are not aware that the creator’s opinion is not entirely objective and they may be biased due to the fact that they received remuneration for the product review.
In the context of influencer marketing, this refers to a situation in which an influencer promotes products or services without clearly indicating that it is an advertisement, which may mislead recipients as to the nature of the content.
Statutory definitions of advertising and surreptitious advertising.
At the outset, it is worth distinguishing between the two concepts and for this purpose referring to the statutory definitions.
Advertising is a commercial message originating from a public or private entity, in connection with its business or professional activity, aimed at promoting the sale or paid use of goods or services; advertising also includes self-promotion. (Article 4, point 7 of the Polish Act of 29 December 1992 on Radio and Television).
Surreptitious advertising, which involves using journalistic content in the mass media to promote a product in a situation where the entrepreneur has paid for this promotion, and this is not clearly indicated by the content or by images or sounds easily recognizable by the consumer. (Article 7, point 11 of the Polish Act of 23 August 2007 on Counteracting Unfair Market Practices).
Why is surreptitious advertising prohibited?
It is easy to guess that a form of advertising that misleads the consumer is not desirable in the Polish legal system. It is considered an unfair market practice, and in the era of influencers, whose earnings are mainly based on advertising cooperation, it is easy to commit such violations.
Prohibitions on surreptitious advertising are contained directly in the laws, such as:
surreptitious advertising, which consists in using journalistic content in the mass media to promote a product in a situation where the entrepreneur has paid for this promotion, and this does not clearly result from the content or from images or sounds easily recognizable by the consumer” (Article 7, point 11 of the Polish Act of 23 August 2007 on Counteracting Unfair Market Practices);
a statement that, by encouraging the purchase of goods or services, creates the impression of neutral information.” (Article 16, paragraph 1, point 4 of the Polish Act of 16 April 1993 on Combating Unfair Competition).
Penalty procedures for surreptitious advertising.
The body responsible for eliminating irregularities in labeling advertisements is the Polish Office of Competition and Consumer Protection.
In a situation where there is a suspicion of such illegal practices, the President of the Office of Competition and Consumer Protection may initiate explanatory proceedings to examine whether the regulations have been violated.
When it is determined that surreptitious advertising has taken place, the President of the Office of Competition and Consumer Protection initiates administrative proceedings in which he may impose a financial penalty on the influencer (and the company commissioning the advertisement!) by way of an administrative decision.
Penalties for influencers not only for surreptitious advertising?
In addition to the influencer’s responsibility to transparently label the products they advertise, they must also consider whether a given advertisement is legal. In some cases, advertising may be permitted, but subject to certain restrictions, such as the target group, the form of advertising communication, or other specific conditions. Failure to be familiar with these regulations can lead to serious legal consequences.
In what cases should influencers be especially careful? Legal regulations impose prohibitions and restrictions on advertising certain products and services. The most commonly regulated categories include:
All of these product groups require special attention when being promoted by influencers to avoid violating the law.
Are only influencers punished for surreptitious advertising?
Not only influencers are punished for unfair market practices in the form of surreptitious advertising, but also companies that commission such activities. One of Polish pharmaceuticals and food supplements producer learned this the hard way, being fined over PLN 5 million for activities related to incorrect labeling of advertising materials in social media. The company, which produces dietary supplements, medicines and medical devices, cooperated with influencers who had a huge number of followers and considerable reach in social media. Advertisers are responsible for the way they organize and conduct advertising campaigns in social media. In this case, the company was responsible for providing influencers with guidelines on advertising their products, which were inconsistent with the law. These guidelines recommended the use of unclear labeling of advertising materials, such as using product names, hashtags, or references only to the brand, which meant that the publications were not clearly recognized as advertising by the recipients. In this case, the producer was punished for its actions because, as a professional in the field of advertising, it was obliged to comply with the applicable regulations. Not only influencers who publish content without proper marking are punished for surreptitious advertising, but also companies that commission such advertising and provide influencers with unlawful guidelines. Both parties have an obligation to ensure that advertising content is properly marked and complies with the law.
Educational activities of the Polish Office of Competition and Consumer Protection in the field of surreptitious advertising
The Polish Office of Competition and Consumer Protection (UOKiK) demonstrates an exemplary attitude when it comes to educating influencers and advertisers in the context of acting in accordance with the law, including the correct labeling of advertising content. The Office organizes numerous training courses, consultations and events aimed at improving awareness of the obligations related to the transparency of advertising in social media.
An example of educational activities are the publications that UOKiK posts on its website and on official profiles in social media. The Office regularly reminds how to label posts so that they comply with the letter of the law. Moreover, in response to the growing number of cases of surreptitious advertising, UOKiK has developed special recommendations that help influencers avoid mistakes. These documents contain detailed instructions on how to use clear, unambiguous advertising labels and what the consequences of ignoring them are.
Additionally, UOKiK cooperates with industries, influencer organizations and internet platforms to create mechanisms supporting transparency and honesty in the online advertising market. Education on how to properly label ads is becoming a key element in the fight against surreptitious advertising, which is beneficial both for consumers and for web creators who want to avoid legal trouble.
Examples of incorrect ad labeling:
There are many cases where influencers violated the regulations on labeling ads by using illegible or ambiguous labels. Sometimes, posts contained only subtle references to the brand, such as #olimpad, which were not clear enough for the consumer to immediately recognize that it was advertising material. In such cases, despite cooperation with large brands, there was no clear and direct indication that it was an advertisement, which was misleading to the recipients.
Companies that cooperate with influencers are obliged to provide guidelines that clearly specify how to label ads. However, in the case of the abovementioned producer, influencers received instructions that suggested using such subtle labels as the brand name or hashtag, instead of clear “#advertisement” or “#sponsored material”. Such practices were considered a violation of the law, and the company was punished for incorrectly labeling advertising materials.
In situations where influencers use illegible labels, both they and advertisers are exposed to serious legal consequences. An example could also be the situation with influencers who promoted products without any form of labeling, which ultimately led to the imposition of financial penalties. Such cases show how important it is to comply with the rules of transparency of advertising on social media.
Case studies of fines for surreptitious advertising
At the beginning of 2025 – information circulated on the Internet that the President of the Polish Office of Competition and Consumer Protection had punished three celebrities/influencers for promoting products of various brands on Instagram, without using clear indications that it was an advertisement.
The President of the Polish Office of Competition and Consumer Protection) stated in his statement:
“The three influencers promoted products of various brands without using clear labels. Commercial publications were similar to neutral materials also in terms of content and style, e.g. they suggested spontaneous product selection or answers to recipients’ questions. Sometimes they were marked only with a mention of the brand, ambiguously or in invisible places”.
Penalties for celebrities were severe because:
a) One of the TV presenters had to pay a fine of PLN 80,895 and was ordered to cease the practice.
b) A popular singer was charged a fine of PLN 191,523 and was also ordered to cease the practice.
c) A well-known TV personality received a fine of PLN 220,267.
The decisions are not final and entrepreneurs have the right to appeal to the Court of Competition and Consumer Protection.
The President of the Polish Office of Competition and Consumer Protection (UOKiK) explains and appeals for the labeling of advertisements to be clear and unambiguous, so that the consumer has no doubts that a given advertisement is in fact a collaboration with the creator. “Recommended terms should be used, e.g. #advertisement, (advertisement), [advertisement], #sponsored material, (sponsored material), [sponsored material], written in a sufficiently large and clear font.”
UOKiK, in response to people’s expectations and wanting to dispel any doubts, has developed official recommendations regarding the marking of advertising content by influencers in social media: https://uokik.gov.pl/Download/98