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With decisions published on 2 November 2020, the Italian Competition Authority (ICA) closed, without issuing any sanctions in acceptance of the commitments of the parties, the procedures with which it had contested the inclusion of subliminal advertising in the video clips of the Italian songs “Senza Pensieri” by Rovazzi and “Mambo salentino” by Boomdabash & Alessandra Amoroso (proceedings no. PS11603 – decision no. 28385; PS11604 – decision no. 28386; PS11605 – decision no. 28387). In the first case, the brands that appeared in the video clips were LG and Wind; in the second case, it was the Peroni brand. In all cases, these were videos disseminated via YouTube and other channels, where the insertion of products for promotional purposes (product placement), was not reported in the video but only in the description below it, where it was accessible (together with many other pieces of information) only by clicking on the words “show more”.

The proceedings were initiated based on a claim by a consumer association, Unione Nazionale Consumatori, which argued that way it was communicated that the brands were inserted for promotional purposes “could be inadequate to make clear the existence of a client relationship with the brand shown in the video, which is required to guarantee that consumers watch the videos with the proper critical spirit“. The ICA had therefore contested the possible violation of Articles 20 (2), 22 (2) and 23 (1) (m) of the Italian Consumer Code, i.e., in essence, that the insertion of trademarks in the video clips in question constituted an unfair commercial practice, in particular due to the misleading omission of its commercial intent which was allegedly capable of distorting the consumers’ economic behavior. The proceedings were commenced against all those involved in the production and dissemination of the videos: the artists, the companies managing their image rights, the marketing companies, the companies owning the advertised trademarks, the companies  producing the video clips and the companies that disseminated the latter.

With regards to the decisions in question, the ICA specifies that “the insertion of products and brands for commercial purposes within videos transmitted via the internet requires a balance between the need to protect artistic expression and the consumers’ right to be informed of the existence of advertising messages within the entertainment content where there is a client relationship between the artist and the brand. In fact, hidden marketing is particularly insidious, as it is aimed at a vast and heterogeneous audience of consumers who may not activate the natural interpretative defenses that are triggered in the presence of a declared advertising intent“. However, the ICA concludes that it will not take action against the infringement given the commitments undertaken by the professionals involved, namely the commitments to:

  • insert an overlay warning in the video broadcast online;
  • create a version of the videos including the warning in the end credits, for dissemination through television broadcasters;
  • make clear the inclusion of brands for promotional purposes in all future video clips, and not limited to those covered by the proceedings;
  • include specific provisions in future contracts that oblige artists, influencers and brand owners to insert suitable warnings within the videos in order to make any advertising transparent;
  • adopt specific guidelines to be sent to the senior executives of the companies concerned and to the employees assigned to perform artistic, commercial, marketing and promotional functions, providing the rules to abide to avoid hidden advertising.

In conclusion, the ICA believes that “the measures proposed by the concerned professionals are sufficient for making the advertising purpose transparent and to generate a wide-ranging useful effect, as they are not limited to the video clips being investigated, but they are permanently extended to the overall behaviour, even in the future, of each professional. Furthermore, given the overall importance in the sector of the parties involved in the proceedings, these measures could generate virtuous emulative effects in other operators in the same field“. For these reasons, the ICA finds that the requirements of Article 27 (7) of the Consumer Code are met: based on this provision, except in cases of manifest unfairness and seriousness of the commercial practice, the ICA can obtain from the professionals involved an undertaking to put an end to the breach by ceasing or modifying its commercial practice; in such cases, the ICA, having assessed the suitability of these commitments, can make them mandatory for the professionals and close the procedure without taking action against the infringement, as in the case in question.